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VIRGINIA LAW REVIEW
VOLUME 83
FEBRUARY 1997
NUMBER 1
ARTICLES
RESPONSES TO BREACH OF A TREATY AND
RATIONALIST INTERNATIONAL RELATIONS
THEORY: THE RULES OF RELEASE AND
REMEDIATION IN THE LAW OF TREATIES AND THE
LAW OF STATE RESPONSIBILITY
John K. Setear"
INTRODUCTION
Adozen
nations sign and ratify a regional nuclear non1
proliferation treaty in which they promise not to build or
operate breeder-type reactors. Two years after the treaty enters
into force, commercially available satellite imagery reveals that
one of the signatories has begun construction of a containment
vessel associated only with breeder reactors. What responses to
this breach of an international treaty does international law
authorize? May one of the other eleven signatory nations begin
to build a breeder reactor of its own? Sever its diplomatic ties
with the offending nation? Sue for damages? Impose a unilateral trade embargo? Launch an air strike against the construction site before the arrival of any nuclear materials?
* Acting Professor of Law, UCLA Law School. I would like to thank the participants of the Legal Studies Workshop at the University of Virginia School of Law, and
various anonymous readers, for their comments on an earlier draft. The Ford Foundation, the UCLA Academic Senate, and the Woodrow Wilson International Center
for Scholars provided financial support for this research. William Aceves and Robert
M. Swerdlow provided invaluable research assistance.
Virginia Law Review
[Vol. 83:1
This Article examines the international legal rules governing
responses to breach of an international treaty from the perspective of various rationalist theories of international relations
("IR") developed by political scientists. The relevant international legal rules consist of two broad categories. One such
category, which this Article calls the "rules of release," governs
responses to breach of a treaty that involve a decision by the victim to cease performing its own obligations under the breached
treaty. The other such category, which this Article calls the
"rules of remediation," governs all other responses to breach of
a treaty, such as the victim's decision to pursue political, economic, or military sanctions against the breaching party, or to
sue the breaching party for damages. Article 60 of the Vienna
Convention on the Law of Treaties codifies the rules of release;
the currently uncodified "law of state responsibility" is the
source of the rules of remediation relevant to treaty breaches.1
The relevant theories of IR consist of a suite of concepts used
by those political scientists who typically call themselves "neorealists"' or "neoliberal institutionalists."3 These theories are
I The focus of this Article on treaty law implies a focus on "public" international
law, which typically involves the actions of governments, in contrast to "private" international law, which typically involves the actions of corporations or individuals.
See Barry E. Carter & Phillip R. Trimble, International Law 1-2 (2d ed. 1995)
(discussing distinction and noting that dividing line has become increasingly blurred
"as the norms of traditional public international law also purport to regulate or affect
private conduct").
2 Realism has been the dominant school of thought in IR theory since World War
II. See Anne-Marie Slaughter Burley, International Law and International Relations
Theory: A Dual Agenda, 87 Am. J. Int'l L. 205, 207, 214 (1993). The realists believe
that international relations is a ceaselessly competitive struggle among nations to effectuate relative gains in their national security. For (an updated version of) the
seminal work of post-World War II realism, see Hans J. Morgenthau, Politics Among
Nations: The Struggle for Power and Peace (Kenneth W. Thompson ed., 6th ed.
1985).
The "neorealist" or "structural realist" variant of classical realism, developed in the
past few decades and now probably the leading school of IR theory, employs the
tools of economics in the service of the classical realist vision. Neorealists also emphasize that external interactions among nations-variously denominated "systemic"
factors, the "third image" of international relations, or "geopolitical" considerations-are the crucial determinant of outcomes in international affairs. Such an emphasis contrasts with a focus on human nature (as the classical realists do) or such
"unit-level" or "national" characteristics as whether a nation is a democracy (as the
"neoliberals" do, see infra note 4) as the driving force in international politics. The
seminal work of neorealism is unquestionably Kenneth N. Waltz, Theory of Interna-
1997]
Responses to Breach of a Treaty
"rationalist" in the sense that they largely adopt the model of
rational, unitary actors so relentlessly propagated by economists; these theories involve IR because the neorealists and
neoliberal institutionalists have, to some extent, contextualized
these theories as they have used them to conceptualize JR.'
Neoclassical economics, especially the theory of public goods, is
the wellspring of rationalist IR theory, but rationalist IR theorists also draw their insights and arguments from game theory,
decision theory, and cybernetics.
Why use IR theory to analyze international law? Mostly because international law is a part of international politics Intional Politics (1979). For some more recent and briefer discussions of the relevant
tenets, see John J. Mearsheimer, The False Promise of International Institutions, Int'l
Sec., Winter 1994/95, at 9-12 (summarizing the main assumptions of realism); Christopher Layne, Kant or Cant: The Myth of the Democratic Peace, Int'l Sec., Fall 1994,
at 10-12 (1994) (emphasizing anarchy, concerns with security, and primacy of systemic factors).
I "Neoliberal institutionalism," n~e regime theory, bears some definite similarities
to "neorealism," though neoliberal institutionalists have always been more optimistic
about the likelihood of international cooperation effectuated through "regimes." See
Robert 0. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy 7-10, 85-109 (1984) [hereinafter Keohane, After Hegemony]. Keohane's is the seminal institutionalist work. For briefer descriptions of neoliberal institutionalism or its immediate antecedents by international lawyers, see Kenneth W.
Abbott, Modern International Relations Theory: A Prospectus for International
Lawyers, 14 Yale J. Int'l L. 335, 342-54 (1989) [hereinafter Abbott, IR Prospectus]
(outlining the fundamental concepts of institutionalism); Burley, supra note 2, at 21719 (describing Waltz's work and modifications of it); John Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International
Law, 37 Harv. Int'l L.J. 139, 180-85 (1996) [hereinafter Setear, Iterative Perspective]
(describing development of institutions). See also id. at 142-46 (describing some international legal scholarship that makes use of neoliberal institutionalism).
4 For my purposes, neorealism and neoliberal institutionalism-with their mutual
reliance on structural or systemic analysis and their free use of methodologies drawn
from neoclassical economics and game theory-are sufficiently similar that I am
willing to aggregate them into "rationalist IR theory." This conflation is especially
defensible because this Article does not employ the recent methodological advances
in formal game theory that some neorealists, but almost no neoliberal institutionalists, have embraced. See infra note 6 (describing recent uses of formal game theory
in writings of neorealists). Other schools of thought in IR theory certainly differ from
these two rationalist schools. For a survey of both rationalist and several other
schools of thought from the perspective of an international legal scholar, see Burley,
supra note 2, at 207-08 (discussing classical "Morganthau" realism); id. at 215-16
(systems theory); id. at 217 (neorealism); id. at 217-19 (institutionalism); id. at 222
(constructivism); id. at 227-28 (liberalism). See also infra notes 8 (discussing liberalism) and 9 (discussing the relationship of neoliberal institutionalism to neorealism).
I Indeed, the realists believe that there is no real line between international politics
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deed, in light of the radical decentralization of the international
dispute-resolution system-in which there is no international
executive branch, no police, no prisons, no standing army, no
real international legislature, and only the rudiments of an
authoritative system of international adjudication-the line between international politics and international law is much more
difficult to draw than the similar line between domestic politics
and domestic law. International lawyers might benefit from the
accumulated wisdom of political scientists who, after all, have
thought about international politics (or, as they tend to call it,
international relations) for some time.'
and international law at all. They believe that international law or international institutions simply reflect politics, especially power relationships, rather than exerting any
independent effect on relations among nations. See Mearsheimer, supra note 2, at
13-14; see also Burley, supra note 2, at 217, 218 (stating that leading neorealists "left
no room whatsoever for international law" and that "[r]ealists, both traditional and
structural, had explained the existence of [international] institutions as a corollary of
dominant U.S. power"). The neoliberal institutionalists (and the neoliberals and the
classical liberals), in contrast, all believe that certainly international institutions, and
probably even international law, can have some independent effect on international
affairs. See Burley, supra note 2, at 219-24 (describing neoliberal institutionalists'
view of international law, and identifying joint agenda for pursuit by institutionalists
and international lawyers).
This Article is of course based on the assumption that international legal rules can
have some independent effect on international affairs: Why bother to examine international legal rules at all if those rules are nothing more than epiphenomenal reflections of underlying power relationships? Certainly it would be difficult to examine
international law in any fashion-except to dismiss it-unless one believed that the
rules of international law had some effect on national behavior. This Article therefore employs some of the conceptual apparatus of neorealism to analyze the problem
of international cooperation, without subscribing to the neorealists' conclusions
about international law-much as the neoliberal institutionalists use much of the
neorealist apparatus but reach a different conclusion about the independent utility of
international institutions more generally. See infra note 9.
6 Several scholars of international law have previously examined international law
in the light of IR theory. See Abbott, IR Prospectus, supra note 3 (surveying rationalist IR theory and examining its potential applicability to various problems in international law); Kenneth W. Abbott, "Trust But Verify": The Production of Information in Arms Control Treaties and Other International Agreements, 26 Cornell Int'l
L.J. 1 (1993) [hereinafter Abbott, Trust But Verify] (examining game-theoretical implications of rationalist IR theory for rational design of arms-control agreements);
Burley, supra note 2 (surveying histories of ideas in IR theory and international law
since World War II and proposing "dual agenda" involving use of both IR Liberalism
and rationalist IR theory-especially "institutionalism"-in examining international
law); Setear, Iterative Perspective, supra note 3 (arguing that law of treaties governing validity of, and degree of obligations in, treaties reflects extensive concern with
prominent rationalist IR concept of iteration); G. Richard Shell, Trade Legalism and
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Responses to Breach of a Treaty
The primary goal of this Article is therefore to examine the
consistency of the rules of release and remediation with what
this Article calls the "rational-design hypothesis."' The conceit
of the rational-design hypothesis is to ask a central question that
is part Gedanken experiment and part doctrinal empirics: If a
single individual were to have designed a system of international
legal rules governing responses to the breach of a treaty in accordance with the tenets of rationalist IR theory, would the resulting rules closely resemble the actual rules of international
law on release and remediation? International law, like other
institutions, has not of course actually sprung from a conscious
design, but the rational-design hypothesis is not intended as a
literal inquiry into the history of the relevant institution. If the
answer to the question asked by the rational-design hypothesis
is "yes," then rationalist IR theory has some predictive power:
One may use that theory to predict the actual rules of international law governing responses to breach of a treaty. Those who
examine international law could then use rationalist IR theory
as a useful framework for explaining and predicting the rules
governing response to a treaty breach, while those who explore
the predictive power of rationalist IR theory across the range of
IR could then put a tally in the column of successes. If the anInternational Relations Theory: An Analysis of the World Trade Organization, 44
Duke L.J. 829 (1995) (applying both neoliberal institutionalism and two strands of
liberalism to analysis of World Trade Organization, especially its system of dispute
resolution); Edwin M. Smith, Understanding Dynamic Obligations: Arms Control
Agreements, 64 S. Cal. L. Rev. 1549 (1991) (using rationalist IR theory, especially
"regime theory," to explain lack of legalistic formalism in U.S.-Soviet relationship
involving arms-control treaties). See generally Setear, Iterative Perspective, supra
note 3, at 142-47 (summarizing and briefly analyzing works of Abbott, Burley, and
Smith).
A few political scientists, for their part, have noted the potential relevance of international law to their own work. See Robert 0. Keohane, Compliance with Interna-
tional Commitments: Politics Within a Framework of Law, 86 Proc. Am. Soc'y Int'l L.
176 (1992) (noting critical importance of international legal rules in determining
whether nations obey principles and rules of international regimes); Charles Lipson,
Why Are Some International Agreements Informal?, 45 Int'l Org. 495 (1991) (noting
that various constraints imposed by formality of treaty process may make informal
agreements useful in situations requiring flexibility or minimal publicity).
7
For brief discussions of issues of "organizational design," which is essentially
equivalent to the rational-design hypothesis, see Abbott, Trust But Verify, supra note
6, at 2-3; Burley, supra note 2, at 223 n.90; Setear, Iterative Perspective, supra note 3,
at 146; see also infra note 36 (quoting Abbott at some length on the rational-design
hypothesis).
6
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swer to this question is "no," then those seeking a theory to explain the rules of release and remediation should look elsewhere, and those keeping track of rationalist IR theory's predictive power more generally should remembel to tote up the
negative outcome resulting from this specific example.8
8 Those still interested in using some IR theory to explain international legal rules
might turn to non-rationalist IR theories. Adherents of classical "liberalism" or
"idealism" believe that the international system tends strongly towards cooperation,
encouraged by the economic interdependence resulting from free trade. To liberals,
pervasive wars result from human ignorance or folly, including the failure to erect
viable collective security arrangements. This optimism, with its prospective or reformist flavor, plainly distinguishes classical liberalism from the as-it-was-and-evershall-be pessimism of the realists. For some contemporary works that possess at least
some of the flavor of classical liberalism but that are frequently willing to incorporate
pieces of the realist argument, see Dale C. Copeland, Economic Interdependence and
War: A Theory of Trade Expectations, Int'l Sec., Spring 1996, at 16-25 (fusing liberal
and realist traditions to argue that economically interdependent states are unlikely to
go to war if they expect that trade will continue at high levels but are very likely to go
to war if they expect that trade will soon be restricted); Charles A. Kupchan & Clifford A. Kupchan, Concerts, Collective Security, and the Future of Europe, Int'l Sec.,
Summer 1991, at 115-16 (arguing for the merits of a collective-security system while
incorporating balance-of-power arguments traditionally identified with realism); see
also Richard Rosecrance, The Rise of the Trading State: Commerce and Conquest in
the Modern World (1986) (arguing that economic trade offers states in the modern
world better opportunities for gain than does pursuit of military ends, especially territorial conquest).
An offshoot of liberalism known as "neoliberalism" emphasizes the impact of national political characteristics on international affairs and, while neoliberals are not
averse to statistical analysis, typically shies away from neoclassical economics and
from game theory. The neoliberals assert that cooperation among democracies is
quite possible-even inevitable-and focus their analysis around the validity and implications of this central assertion. For a relatively recent statement of the hypothesis
concerning the "democratic peace"-the idea that democracies do not fight one another very often, even though democracies are not generally more pacific than nondemocracies-and its policy implications, see Bruce Russett, Grasping the Democratic Peace: Principles for a Post-Cold War World (1993); see also Jack S. Levy,
Domestic Politics and War, in The Origin and Prevention of Major Wars 79, 88
(Robert I. Rotberg & Theodore K. Rabb eds., 1989) (calling the democratic peace
hypothesis "as close as anything we have to an empirical law in the study of international relations"). For efforts at explaining why democracies do not fight one another, see William J. Dixon, Democracy and the Peaceful Settlement of International
Conflict, 88 Am. Pol. Sci. Rev. 14 (1994) (arguing that leaders in democracies favor
peaceful dispute resolution and that democracies are thus especially likely to settle
disputes between themselves peacefully); John M. Owen, How Liberalism Produces
Democratic Peace, Int'l Sec., Fall 1994, at 93 (arguing that polities in democracies favor peaceful resolution of disputes and that influence of polity constrains even a waroriented leader in a crisis threatening war); William R. Thompson, Democracy and
Peace: Putting the Cart Before the Horse?, 50 Int'l Org. 141, 142 (1996) (arguing that
current democracies were beneficiaries of regional dominance that allowed both de-
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Responses to Breach of a Treaty
The actual answer to the question of the rational-design hypothesis proves-of course-to be something other than a simple "yes" or "no." With respect to the rules of release, the
broad structure of the relevant international law is quite consistent with rationalist IR theory involving the theory of public
goods and with associated theories concerning the iterated Prisoner's Dilemma and the theory of collective action. Many of
the details of the rules of release, however, display substantially
less consistency with rationalist IR theory, and indeed the theoretical lens itself requires some extra grinding to give it sufficient resolution to examine much in the way of legal details.
With respect to the rules of remediation, even the most fundamental of the relevant international law principles are inconsistent with basic IR theory-unless one deploys a particular segment of IR theory that, in its emphasis on misperception, is only
mocratization and subsequent pacifism). For writings of some who believe that the
democratic-peace hypothesis is incorrect or overblown, see Henry S. Farber & Joanne Gowa, Polities and Peace, Int'l See., Fall 1995, at 124 (arguing that democraticpeace hypothesis is analytically weak, that pairs of democracies are more likely to
become involved in non-war disputes than other pairings, and that democratic-peace
hypothesis only holds statistically in period since 1945); David E. Spiro, The Insignificance of the Liberal Peace, Int'l Sec., Fall 1994, at 51 (arguing that, owing to small
number of democracies as proportion of all states throughout history, the democratic
peace is not a statistically significant phenomenon); see also Layne, supra note 2, at
6-7 (arguing that close examination of four case studies in which democracies almost
went to war shows that a democracy does not treat a rival any differently than a nondemocracy would treat the same rival); cf. Edward D. Mansfield & Jack Snyder, Democratization and the Danger of War, Int'l Sec., Summer 1995, at 6 (arguing that
logic and statistical analysis both support the assertion that a state moving towards a
democratic form of government is likely to engage in war with a democracy, even
though conflict between mature democracies is unlikely). For applications of neoliberal theories to international legal issues, see Anne-Marie Burley & Walter Mattli,
Europe Before the Court: A Political Theory of Legal Integration, 47 Int'l Org. 41
(1993) (examining the European Community); Shell, supra note 2 (examining the
World Trade Organization).
Proponents of yet another, "constructivist" school emphasize the degree to which
international relations is constructed by its participants-that is, the degree to which
international relations lacks phenomena of any inherent content but is rather a human activity conducted in a complex and puzzling world. See, e.g., Alexander
Wendt, Constructing International Politics, Int'l Sec., Summer 1995, at 72-75 (1995).
This group has its roots in the larger movement of deconstructionism but, bucking the
trends of nomenclature in IR theory, eschews calling itself "neo-deconstructionism."
I do not know whether they do so because deconstruction is itself too new for there
to be a "neo-deconstructionism," because they recoil from multiple prefixes, or because they wish to separate themselves from the "critical studies" field, which was not
nearly as popular in IR theory as it has proven to be in legal analysis.
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marginally "rationalist." Finally, an examination of how (or
even whether) one broad category of responses to breach constrains the other set of responses produces further evidence that
the rules of international law are not especially consistent with
the implications of rationalist IR theory. This examination also
reveals that the semi-rationalist segment of IR theory that was
able to explain the rules of remediation is quite inconsistent
with the rules of release. After reaching the conclusion that the
(fountain)head of rationalist IR theory is, metaphorically,
bloodied but unbowed by its encounter with the international
law governing release and remediation, the Article then explores the plausibility and utility of treating rationalist IR theory
as a source of normative, rather than positive, analysis. Using
rationalist IR theory to generate proposals for reform of the
relevant international law proves quite possible across a broad
range of doctrines-although those possessed of a rationalist
bent should perhaps be more sober than most about the chances
that such reforms will insinuate themselves into the rules of an
international legal system that moves forward slowly and sometimes inconsistently.
Readers scanning the introductions to articles in the growing
tide of pieces on international law might reasonably hope to
glean at least a summary answer to two questions concerning
the pages to follow: "So what?" and "What's new?" One might
less concisely reformulate the "So what?" question as, "If we accept all of your arguments, what will we (or should we) do differently?" This Article provides a somewhat modulated response. This Article does not offer up rationalist IR theory as
some social-science version of the Theory of General Relativity,
able to explain untold (or even unfathomable) mysteries of the
universe while preserving the validity of our common experiences. Nor does this Article argue that rationalist IR theory is
irrefutable, whether in terms of the power of its arguments or by
way of casting deep suspicion (derived from the theory itself) on
the motivations of skeptics. This Article instead argues that rationalist IR theory is useful in explaining some phenomena in
international law, but not so useful in explaining some other
phenomena. One may thus feel free to reject rationalist IR theory entirely, if one is inclined to absolutes. Or, if one is inclined
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Responses to Breach of a Treaty
9
instead to incrementalism, the conclusions of this Article can be
used to lend rationalist IR theory some qualified support or to
attempt future development of the theory.9
I Such "development" might of course include merely employing a finer grain of
analysis with respect to the underlying rationalist IR theory. Neorealism and neoliberal institutionalism are arguably distinct despite certain similarities.
On the one hand, neoliberal institutionalism began as "regime theory," and the
seminal work in regime theory expressly locates itself in the realist tradition:
I propose to show, on the basis of their own assumptions, that the characteristic
pessimism of Realism does not follow. I seek to demonstrate that Realist
assumptions about world politics are consistent with the formation of
institutionalized arrangements, containing rules and principles, which promote
cooperation.
Keohane, After Hegemony, supra note 3, at 67 (emphasis added). A recent article by
Keohane and another neoliberal institutionalist begins by noting the similarities between that school and realism:
[L]iberal institutionalists treat states as rational egoists operating in a world in
which agreements cannot be hierarchically enforced, and ... institutionalists
only expect interstate cooperation to occur if states have significant common
interests. Hence institutionalist theory does not espouse the concept of
collective security .... Nor does institutionalism embrace the aspirations to
transform international relations put forward by some critical theorists. Like
realism, institutionalist theory is utilitarian and rationalistic.
Robert 0. Keohane and Lisa L. Martin, The Promise of Institutionalist Theory, Int'l
Sec., Summer 1995, at 39 (footnotes omitted).
In addition, when some clearly neorealist theorists criticized regime theorists for inadequate attention to the notion of "relative gains"-the idea that a nation measures
its benefits from a given course of action only in comparison to the benefits obtained
by other nations, rather than solely in terms of the absolute benefits to the nationthe regime theorists were quick to acknowledge, and virtually to apologize for, their
inattention to the relative-gains gospel. See id. at 4446; John C. Matthew III, Current Gains and Future Outcomes: When Cumulative Relative Gains Matter, Int'l
Sec., Summer 1996, at 116-21 (arguing that absolute- and relative-gains arguments
have played an important but diminishingly discordant role in debates between realists and liberals).
On the other hand, neorealists and neoliberal institutionalists certainly have their
differences. Compare Mearsheimer, supra note 2, at 15-26 (arguing that liberal institutionalism does a poor job, logically and in terms of available historical evidence, of
trying to explain how institutions might push states away from war) with Keohane &
Martin, supra, at 40-42 (arguing that realism is based on fallacious logic and gives rise
to vague or already-disproved predictions, and that institutionalism is carefully reasoned and empirically supported). See Robert 0. Keohane, International Institutions and State Power 7-8 (1989) [hereinafter Keohane, International Institutions]
(comparing and contrasting broad outlines of neorealism and neoliberal institutionalism); cf. Robert Powell, Anarchy in International Relations Theory: The Neorealist-Neoliberal Debate, 48 Int'l Org. 313 (1994) (reviewing Neorealism and Its Critics
(Robert 0. Keohane ed., 1986) and Neorealism and Neoliberalism: The Contemporary Debate (David A. Baldwin ed., 1993)) (noting multiple opposition in neorealism
and institutionalism, but arguing that some of the "debate" stems from underspecifi-
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Such is the somewhat complex answer to the "So what?"
question as it relates to what one might call the "positivist" portion of this Article-that is, the portion concerned with whether
theory and doctrine mesh according to the rational-design hypothesis. The answer is less ambiguous to the "So what?" question regarding the normative portion of this Article, which
makes some, arguments about what doctrine should be regardless of what doctrine is. If one accepts the (contestable) notion
that principles of rationalist IR theory provide useful guidance
for the advancement of normative reforms, then one can quite
easily generate a lengthy to-do list of legal reforms. For example, the central formulation of the rules of release-the definition of material breach-should be significantly reshaped to focation of the structure of international relations under consideration). The neorealists clearly consider themselves opposed to straightforward neoliberals, yet the currently preferred self-designation of the former regime theorists as "neoliberal institutionalists" implies that such institutionalists pitch their tents closer to the neoliberal
than to the neorealist camp. See id. (discussing debate between neorealists and neoliberals while drawing almost exclusively upon institutionalists to represent nonneorealist view); cf. Keohane, International Institutions, supra, at 10-11 (emphasizing
differences between neorealism and neoliberal institutionalism and then comparing
and contrasting neoliberal institutionalism with liberalism).
In addition, realists tend to focus on security issues and on competition among nations, while institutionalists tend to examine issues of international political economy
and on the cooperation made possible by institutions-foci hardly foreign to the classical liberals. See James D. Fearon, Rationalist Explanations for War, 49 Int'l Org.
379, 380 (1995) ("[The dominant paradigm in international relations theory, neorealism, is thought to advance or even to depend on rationalist arguments about the
causes of war."); Mearsheimer, supra note 2, at 16 (criticizing institutionalism for
paying so little attention to security issues); Setear, Iterative Perspective, supra note
3, at 184 (listing individual works on regime theory that, in the aggregate, reveal
more exploration of non-security issues than of security issues). But cf. Charles L.
Glaser, Realists as Optimists: Cooperation as Self-Help, Int'l Sec., Winter 1994/95, at
51-54 (advancing theory of "contingent realism" in which cooperation, though not
necessarily institutionalized cooperation, is frequently rational in security matters despite adopting many assumptions of neorealism). Institutionalists are also more open
than realists to the idea that intra-national political phenomena (known sometimes as
"unit-level" phenomena) influence international relations (while realists hew to the
primacy of systemic considerations) and to the idea that ideas influence outcomes in
international politics (while realists remain firm materialists). See Burley, supra note
2, at 225-26 (describing interest, albeit limited interest, of neoliberal institutionalists
in unit-level analysis); Judith Goldstein, Ideas, Interests, and American Trade Policy
(1993) (explaining the "enigma" of U.S. trade policy by reference to significance of
ideas about trade and government protection); Keohane & Martin, supra, at 39 n.2
(stating that "the work of 'constructivist' theorists such as Alexander Wendt eloquently makes a number of arguments that many institutionalists would accept").
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Responses to Breach of a Treaty
cus upon the impact of the breach rather than upon the importance of the breached treaty provision. The rules of release relating specifically to multilateral treaties similarly require reformulation (along similar lines), as well as some additional
work. The rules of remediation contain two fundamental principles: necessity and proportionality. The normative view of rationalist IR theory implies that both need retooling. The principle of proportionality, by its very name, constrains remediation
even though, according to the implications of rationalist IR theory, barriers to the reliable imposition of sanctions for breach,
such as the difficulty of detecting treaty violations, suggest that
disproportionate remediation is the proper response to breach.
The necessity principle likewise implies an ignorance of important arguments from rationalist IR theory that also suggest the
need to curtail the reach of that principle. The normative implications of IR theory also suggest a need to make at least some
international legal rules governing responses to breach more
constraining: There should be, but are not currently, rules constraining release when measures of remediation are used.
These conclusions all flow from examining the relevant doctrines in the light of rationalist IR theory-a methodological
approach that is the answer to the second imputed question,
"What's new?" The intellectual innovations of this Article stem
chiefly from its use of abstract, rationalistic IR theory to examine in detail those legal doctrines in the law of treaties and the
law of state responsibility that govern responses to breach of a
treaty. The delicate nature of "international law" as "law"
without any centralized authoritative lawmakers has led to three
main approaches by international legal scholars. The most
common and most traditional approach is simply to consider international law sui generis, and thus to examine international
law in isolation from domestic law and from other disciplines in
the modern academic arsenal."0 More innovative scholars have
taken one of two tacks in examining international law. One tack
emphasizes the "law" in international law by examining how institutions that are part and parcel of our traditional, domestically-oriented notions of law-e.g., the U.S. Supreme Court10See, e.g., J.L. Brierley, The Law of Nations (Sir Humphrey Waldock ed., 6th ed.
1963).
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use international law in their decisions." Another tack emphasizes the "international" in international law by examining how
international politics shapes the use of "law." This piece takes
the tack that bears towards international politics. More specifically, this Article attempts, as do a handful of other pieces, actually to employ the IR theory developed by political scientists in
the analysis of international law. Most specifically, this Article
(in addition to an earlier piece) 2 attempts this combination of
IR theory and international law with respect to the system of international treaties as a whole-as contrasted with a handful of
articles that either apply IR theory to the more abstract notion
of international law as a whole, 3 or apply IR theory to some
particular subset of treaties."
The first three Parts of this Article examine responses to
breach of a treaty in terms of the broad dichotomy between release and remediation in the relevant international legal rules.
These Parts all use rationalist IR theory as a positive theorythat is, to ask whether the rules of international law are consistent with the rules that rationalist IR theory would predict as
elements of a rational institutional design.
Part Iof this Article focuses a set of lenses from rationalist IR
theory-public goods, collective action, and the iterated Prisoner's Dilemma-on the rules of release codified in Article 60
of the Vienna Convention on the Law of Treaties ("Vienna
Convention").' 5 The broad structure of Article 60-its use of
release as a legally authorized response to a breach, and the fact
that release from multilateral agreements is more difficult to obtain than release from bilateral agreements-is in fact consistent
with the analysis of these rationalist IR theories. A closer look
at some of the details of Article 60-its particular definition of
material breach and the specifics of the special treatment acSee, e.g., Louis Henkin, How Nations Behave (2d ed. 1979).
See Setear, Iterative Perspective, supra note 3.
13 See Burley, supra note 2; Abbott, IR Prospectus, supra note 3.
14 See Abbott, Trust But Verify, supra note 6; Smith, supra note 6; see also Burley
& Mattli, supra note 8 (applying liberal theory to European politico-legal integration); Shell, supra note 2 (applying neoliberal institutionalism and neoliberalism to
the rules and role of the World Trade Organization).
"1 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969,
1
1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) [hereinafter Vienna Convention].
1997]
Responses to Breach of a Treaty
corded multilateral agreements-reveals significant dissonance
between the tenets of rationalist IR theory and the actual rules
of release. Switching the focus to "transaction costs"-though
in a fashion not typically undertaken in the analysis of public
goods and collective action-produces a more satisfactory fit between theory and the specifics of actual rules, however.
Part II focuses on the rules of remediation, which are contained in the (uncodified) law of state responsibility. Two main
principles, necessity and proportionality, constitute the relevant
portion of the law of state responsibility. What I call "optimal-.
deterrence theory"-a combination of elementary deterrence
theory and economic theory derived from the analysis of externalities-reveals some fairly dramatic differences between the
predictions of rationalist IR theory and the actual rules governing responses to breach of a treaty. A slight adaptation of
"misperceptions-spiral theory" seems to do a better job than deterrence theory of predicting the institutional design that actually constitutes the law of state responsibility as it applies to
treaty breaches, but this theory is only partly "rationalist" (and
also proves eventually to be inconsistent with the rules of release).
While Parts I and II each focus on a single aspect of the rules
governing responses to breach-the rules of release in Part I
and the rules of remediation in Part II-Part III focuses on the
relationship between the rules of release and the rules of remediation. No set of rules specifically and exclusively governs this
relationship, but the rules of remediation do imply a certain relationship to the rules of release: The availability or exercise of
a release option appears to constrain the availability of remediation measures. The rules of release do not appear to contain an
analogous principle: The availability of remediation measures
does not appear to constrain the availability or exercise of release. This one-way limitation is not consistent with the optimal-deterrence theory discussed in Part II. Some practical aspects of a typical response to a breach, however, tend to
mitigate this theoretical imperfection. The simultaneous consideration of the rules of release and remediation proves to
yield some insights not only into the rules themselves but also
into at least one theory used to explain those rules in Part II.
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Although the misperceptions-spiral theory may be used to justify the rules of remediation, the rules of release are quite inconsistent with the implications of that theory. Part III closes by attempting to unify the theoretical frameworks of Parts II and III
after eliminating misperceptions-spiral theory from the available
palette. Such an attempt proves useful chiefly to point out the
limitations of rationalist IR theory, but at least the attempt does
so in the context of a sustained analysis of a particular problem
rather than in the abstract.
Part IV transmogrifies the positivist approach of the first
three Parts into a normative, reform-oriented approach. Where
the first three Parts identify inconsistencies between the rational-design hypothesis and the actual rules of release and
remediation, Part IV of the Article proposes to use those inconsistencies as the starting point for reshaping international law
along more rationalistic lines. The definition of material breach,
in this view, should be modified to focus on the breach itself, not
on the role of the breached provision in the treaty; the rules
specially applicable to multilateral agreements should become
more sensitive to this same principle. The rules of remediation
need a thorough overhaul oriented towards allowing freer punishment of treaty breachers. A two-way (rather than merely
one-way) constraint between rules of release and rules of remediation is in order as well.
The Article concludes with a brief discussion of the implications of its analysis for the relationship between IR theory and
international law more generally. With the hindsight of this
analysis, one may suggest fairly specific paths for future empirical or theoretical work. The Conclusion also suggests that, in
light of the extensive overlap between rationalist IR theory and
economic analysis (and the arguably higher state of development of law and economics theory compared to rationalist IR
theory), some combination of IR theory and the law and economics analysis of contracts may be a fruitful approach to pursue in future analysis of treaties and of the rules that govern
their validity and implementation.
Responses to Breach of a Treaty
1997]
I.
RULES OF RELEASE: ARTICLE 60 OF THE VIENNA
CONVENTION
This Part analyzes the "rules of release" described in Article
60 of the Vienna Convention. These rules revolve around the
concept of "material breach," which is defined as "the violation
of a provision essential to the accomplishment of the object or
purpose of the treaty."'6 With respect to bilateral treaties, a material breach is both necessary and sufficient to give the victim
of that breach the option to release itself from all of its obligations under the breached treaty. With respect to multilateral
treaties, a material breach is a necessary but not a sufficient
condition to give rise to the release option; the material breach
must also either lead all non-breaching parties to agree that their
simultaneous release is appropriate, or specially affect a party
seeking release only from its obligations to the breaching state,
or radically affect the future performance obligations of all parties. Section A describes these various rules in more detail.
Section B argues that the broad structure of Article 60 is entirely consistent with the rational-design hypothesis as derived
from rationalist IR theory. IR theorists commonly conceive of
international cooperation as an "iterated Prisoner's Dilemma"
("IPD") that in turn arises from an underlying assumption that
international cooperation is a "public good." This Article argues that such a conception implies that rational rules of release
in treaty law should possess two characteristics. First, those
rules should balance preservation of the gains possible from
continued enforcement of a treaty with the need to reassure
non-breaching parties that they may exercise a release option to
prevent their exploitation by the breaching party. Second, those
rules should make release from agreements involving a small
number of parties easier to obtain than release from agreements
involving a large number of parties. Section B argues that Article 60's broad structure reflects precisely these two characteristics: Article 60 allows some but not all breaches to release a
party from its obligations under the breached agreement, and
Article 60 imposes different-and less stringent-standards for
release from bilateral, vice multilateral, obligations. The fit be16Vienna Convention, supra note 15, at 346.
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tween rationalist IR theory and international law is therefore, at
the broad structural level of Article 60, a good one.
The relationship between Article 60 and rationalist IR theory
is not infinitely harmonious, however. Section C notes the various difficulties that arise when one attempts to demonstrate the
consistency of the rational-design hypothesis with three more
particular aspects of Article 60. First, Article 60's definition of
material breach is only rather roughly tailored to the criteria
that the relevant IR theory on the IPD and public goods would
predict are important. The definition of material breach focuses
upon the importance of the breached provision to the goals of
the treaty. The relevant IR theory implies, however, that this
definition should focus instead upon the deprivation of benefits
inflicted upon the victims by the particular breach and upon the
costs that the breacher avoids through its breach. The match
between the actual definition of material breach and the definition predicted by the relevant IR theory based on the IPD and a
public goods model therefore proves rather imperfect. One may
nevertheless advance a closely-related IR theory, based on a
"transaction-costs" analysis, that does offer at least some additional consistency between Article 60's definition of material
breach and rationalist IR theory. This analysis focuses on the
difficulties of applying fact-intensive rules in the international
legal system and concludes that one may view Article 60's definition of material breach as an effort to economize on highly
costly factual determinations by substituting relatively cheaper
legal determinations.
The second topic of Section C involves those provisions of
Article 60 that set forth the additional requirements for obtaining a release option from a multilateral agreement. On the positive side of the ledger for the rational-design hypothesis, there
are certain aspects of public goods theory that do provide partial justification for some of the particulars of the additionalrequirements provisions. The relevant rules focus on differential impacts of breach among the various parties to a multilateral
agreement and attempt to cabin release to the relationship with
the breaching party. These foci are consistent with the implications of rationalist IR theory. Nonetheless, there are a number
of ways in which the implications of rationalist IR theory are not
1997]
Responses to Breach of a Treaty
consistent with the particulars of Article 60's additional requirements for release from a multilateral treaty. As with Article 60's definition of material breach, the additionalrequirements provisions fail in important ways to enforce a
close relationship between the likelihood of granting a release
option and the deprivation of benefits suffered by the victims of
that breach. Furthermore, the transaction-cost explanation that
one may offer in partial support of Article 60's definition of material breach does not provide any such support for the particulars of Article 60's definition of the additional requirements for
multilateral release. This portion of Section C concludes by
noting that the additional-requirements provisions of Article 60
prove to be particularly problematic in the context of the
"singular promise," which is the primary kind of obligation in a
wide range of treaties (and especially likely to be crucial in
those treaties most clearly involving public goods).
The third particular aspect of Article 60 examined in Section
C is the use of only two categories of treaty ("bilateral" and
"multilateral") keyed to the number of parties to a treaty. The
broad structure of Article 60 in this respect-rules that make a
release option more difficult to obtain when there are three or
more parties to a treaty than when there are only two parties to
a treaty-is consistent with rationalist IR theory under the
analysis developed in earlier parts of the Section. Nonetheless,
rationalist IR theory holds that the number of parties to an
agreement is a crucial variable in determining the problems of
"collective action" likely to occur in making and monitoring the
relevant agreement, and the rational-design hypothesis thereby
implies that Article 60 should incorporate some standard that
accounts more precisely for the resulting differences in the difficulties of implementing treaties among, e.g., three, thirty, and
one hundred and thirty parties. The transactions-cost argument
that partly justified Article 60's actual definition of material
breach, but failed to justify the shortcomings of the additionalrelease provisions, also fails to justify the use in Article 60 of
just two categories to distinguish among treaties according to
the number of parties.
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A. Article 60 of the Vienna Convention: The Rules of Release in
Treaty Law
When one nation breaches a treaty, must other nations initially governed by that treaty continue to adhere to their obligations under the now-breached treaty? The "law of treaties" ad-
dresses this question in Article 60 of the Vienna Convention.17
Article 60 focuses on two factors in determining whether a
breach relieves a non-breaching party of its treaty obligations:
whether a breach is "material" or not, and whether the treaty at
issue is bilateral or multilateral. With respect to a bilateral
treaty, the essential rule releases the victim of a breach from its
obligations only upon a "material" breach of the treaty, 8 and
defines a "material" breach as "the violation of a provision essential to the accomplishment of the object or purpose of the
treaty."'" Note that, as written, the focus of the inquiry is upon
whether the provision is an essential one.' No adjectives like
"substantial" or "fundamental" or "material" modify the word
"violation." Thus, on its face, Article 60(3) is equivalent to
stating that "any violation of a provision essential to accomplishment of the object or purpose" of a treaty is a material
11The law of treaties is codified in the Vienna Convention. For a discussion of the
exact status of this Convention in the eyes of the United States Government, see
Setear, Iterative Perspective, supra note 3, at 148 n.35 (noting that the United States
recognizes the Vienna Convention as "authoritative guide to current treaty law and
practice") (citation omitted).
18Article 60(1) of the Vienna Convention provides: "A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground
for terminating the treaty or suspending its operation in whole or in part." Vienna
Convention, supra note 15, at 346.
11Article 60(3) of the Vienna Convention provides in full: "A material breach of a
treaty, for the purposes of this Article, consists in: (a) A repudiation of the treaty not
sanctioned by the present Convention; or (b) The violation of a provision essential to
the accomplishment of the object or purpose of the treaty." Id.
According to the commentary provided by the International Law Commission on
Article 60(3), the concept of essential provisions should not be read in narrow terms:
The word "fundamental" might be understood as meaning that only the
violation of a provision directly touching the centralpurposes of the treaty can
ever justify the other party in terminating the treaty. But other provisions
considered by a party to be essential to the effective execution of the treaty
may have been very material in inducing it to enter into the treaty at all, even
although [sic] these provisions may be of an ancillary character.
Report of the International Law Commission on the Work of Its Eighteenth Session,
U.N. GAOR, 21st Sess., Supp. No. 9, at 83, U.N. Doc. A/6309/Rev. 1 (1966).
1997]
Responses to Breach of a Treaty
19
breach.2' Conversely, if Article 60(3) is the exhaustive definition
1 This Article adopts the position that the Vienna Convention accurately states the
relevant rule, a position that draws significant support not only from the text of the
Vienna Convention, but also from commentators. See, e.g., 1 L. Oppenheim, International Law § 547, at 756 (Arnold D. McNair ed., 4th ed. 1928); see also Omer
Yousif Elagab, The Legality of Non-Forcible Counter-Measures in International Law
163-64 (1988) (noting Article 60's "implicit recognition of the right to resort to
counter-measures for less serious breaches"); Egon Schwelb, Termination or Suspension of the Operation of a Treaty as a Consequence of its Breach, 7 Indian J. Int'l L.
309, 314-15 (1967) (arguing that the Convention deems material the violation of a
provision essential to accomplishment of any object or purpose of the treaty).
Nonetheless, there are those who believe that the face of the Vienna Convention
does not state the true meaning of the rule. Kirgis argues that "minor" violations of
an essential provision are not material breaches. Frederic L. Kirgis, Jr., Some Lingering Questions about Article 60 of the Vienna Convention on the Law of Treaties,
22 Cornell Int'l L.J 549,572 (1989). The Restatement (Third) asserts:
Not every breach of an agreement is material. This section applies only to a
significant violation of a provision essential to the agreement. Each party may
determine whether there has been a breach by another party and whether it is
material, except when the agreement provides some other mechanism for doing
so. However, suspension or termination of an agreement on the ground of
another party's breach would itself constitute a violation of the agreement if
the other party's breach were found not to have been material.
Restatement (Third) of the Foreign Relations Law of the United States § 335, cmt. b
(1987) [hereinafter Restatement (Third)].
Greig reads Article 60 to define any breach of an essential provision as material,
but is unsure that such a meaning is consistent with preexisting international law on
the subject:
[A]rticle 60 of the Convention is defective in two principal ways and may not
reflect the actual state of international law. First, article 60 bestows a power
upon the innocent party to terminate or suspend a treaty, in whole or in part, in
response to a breach. In other words, it appears that proportionality plays no
role in limiting this act of discretion. Second, although the International Law
Commission referred to the need to limit the right of termination or suspension
to breaches of a "serious character," article 60 defines materiality not in terms
of the degree of breach but instead in terms of the importance of the provision
broken. Thus, a minor breach of an important provision can give rise to the
right of termination, whereas a serious breach of a provision not essential to
the accomplishment of the object and purpose of the treaty does not do so.
D.W. Greig, Reciprocity, Proportionality, and the Law of Treaties, 34 Va. J. Int'l L.
295,342-43 (1994). One might also note the views of Lori Damrosch"
By reading between the lines of the International Law Commission's
commentary [to Article 60], it is fortunately possible to conclude that the
Commission did not intend to foreclose appropriate responses to breaches not
covered by Article 60's materiality standard. The Commission indirectly
recognized that rights of reprisal would be available under international law
wholly apart from any codification of the law of treaties ....
In view of the
sound policy reasons for preserving a deterrent to minor as well as major treaty
breaches, the references to materiality in the text should be read not as
excluding entirely the right to respond to minor breaches, but simply as a
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of a material breach-and no other section or Article in the Vienna Convention discusses material breach-then no breach can
be material if that breach is of a provision not essential to the
accomplishment of the object or purpose of the treaty, regardless of how completely the breach in question violates the relevant (inessential) provision of the particular treaty.'
With respect to multilateral treaties, a material breach is a
necessary but not a sufficient condition for release. A material
breach of a multilateral treaty relieves a given non-breaching
party of its obligations only when at least one of three other criteria is also satisfied: (i) the non-breaching parties have unanimously decided that the treaty's obligations are to be treated as
inoperative; (ii) the particular nation seeking release has been
"specially affected" by the breach and seeks release only from
"the operation of the treaty.., in the relations between itself
and the defaulting State"; or (iii) the breach "radically changes
the position of every party with respect to the further performmeans to ensure that minor breaches are not used as a pretext for denouncing a
treaty which has become inconvenient or for suspending performance of more
than proportional obligations.
Lori Fisler Damrosch, Retaliation or Arbitration-Or Both? The 1978 United
States-France Aviation Dispute, 74 Am. J. Int'l L. 785, 790-91 (1980) (footnotes omitted).
Many of the arguments made in this Article support the proposition that one
should read Article 60 to define as immaterial those breaches that one might characterize as "minor" or "trivial"-and thus support the arguments of those commentators cited immediately above who argue that the face of Article 60 does not or should
not reflect the proper definition of "material breach." See infra text accompanying
notes 68-75 (arguing that face of Article 60's definition of material breach is inconsistent with implications of rationalist IR theory); text accompanying notes 215-216
(reformulating definition of material breach to require substantial deprivation of
benefits to victim).
2 For example, Article 6 of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal would be considered an essential provision. Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal, done March 22, 1989, U.N. Doc.
UNEP/IG.80/3 (1989), 28 I.L.M. 657, 664-65 (1989). Article 6 concerns the transboundary movement of hazardous waste between parties. Id. at 664-5. In contrast,
Article 14 might not be considered an essential provision. But see supra note 20
(noting that International Law Commission stated concept of essential provisions not
to be read in narrow terms). Article 14 establishes centers for training and technology transfer and authorizes the parties to consider the establishment of a revolving
fund to finance emergency responses to accidents arising from transboundary movements. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, supra, at 670.
1997]
Responses to Breach of a Treaty
ance of its obligations under the treaty."' The scope of the release option also differs as between bilateral and multilateral
agreements. The release option available upon material breach
of a bilateral treaty may be used to suspend the relevant obligations temporarily or to terminate those obligations permanently. ' With respect to multilateral treaties, in contrast, a material breach also meeting at least one of the three additional
criteria set forth just above gives rise to an option only of suspension, not of termination.2' The victim of the breach of a multilateral treaty thus has a greater obligation to stand prepared to
resume its obligations in the event that a (formerly) breaching
party resumes its compliance with the treaty's obligations. 6
Article 60(2) of the Vienna Convention provides in full:
A material breach of a multilateral treaty by one of the parties entitles:
(a) The other parties by unanimous agreement to suspend the operation of
the treaty in whole or in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties;
(b) A party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting State;
(c) Any party other than the defaulting State to invoke the breach as a
ground for suspending the operation of the treaty in whole or in part with
respect to itself if the treaty is of such a character that a material breach of
its provisions by one party radically changes the position of every party with
respect to the further performance of its obligations under the treaty.
Vienna Convention, supra note 15, at 346.
3
4
See supra note 18.
Thus, a careful reading of Article 60(2) indicates that an innocent party to a multilateral treaty only has the option to suspend performance under the agreement.
However, the other parties to the multilateral treaty, by unanimous agreement, may
suspend or terminate the agreement. As indicated, Article 60(2) provides:
A material breach of a multilateral treaty by one of the parties entitles:
(a) The other parties by unanimous agreement to suspend the operation of
the treaty in whole or in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties;
(b) A party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting State;
(c) Any party other than the defaulting State to invoke the breach as a
ground for suspending the operation of the treaty in whole or in part with
respect to itself if the treaty is of such a character that a material breach of
its provisions by one party radically changes the position of every party with
respect to the further performance of its obligations under the treaty.
Vienna Convention, supra note 15, at 346 (emphasis added).
16Suspension places the operation of the treaty in abeyance. According to
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The other rules set forth in Article 60 are worthy of mention
but receive little attention in this Article. The declaration by a
party that some procedural flaw makes the treaty inapplicable in
its entirety is, if such an assertion is incorrect, a material
breach.' This is not surprising. The triggering "repudiation"
involves a statement that the whole treaty no longer binds the
repudiating party.' The interesting question thereby raised is
obviously whether that assertion is justified (a matter taken up
elsewhere in the Vienna Convention), 9 rather than whether
such a thoroughgoing abandonment of treaty obligations is sufficient to be material.
The victim of a releasing breach has an option, not a duty, to
release itself from the obligations of the relevant treaty.30 The
optional nature of release is important here mostly by way of
negative implication: The Article need not consider situations in
which the victim of a breach is forced to terminate its obligations, so the Article focuses on when the victim of a breach
wants to exercise that option. The Article similarly assumes that
situations will arise in which the breacher benefits from a breach
Chinkin, Article 60:
[a]llows the injured party to suspend its own performance, presumably for the
duration of the breach or of its consequences, upon material breach by the
other party. Suspension may be chosen as a method of persuading the other
party to recommence or improve its own performance-if the breaching party
is deprived of the values it expected to achieve from the performance of the
agreement, it may conclude that its own actions have become too costly.
Christine Chinkin, Nonperformance of International Agreements, 17 Tex. Int'l L.J.
387, 427 (1982) (footnotes omitted). In contrast, termination ends all formal and informal obligations under a treaty.
27 See
supra note 18.
Chinkin notes that "[a] denunciation of the policies in the agreement or a refusal
to accept its binding force is incompatible with the expectation of stability grounded
in the agreement and creates uncertainty regarding the likelihood of its performance.
A party can repudiate an agreement through a formal declaration or an action. .. "
Chinkin, supra note 26, at 397. According to Villiger, "[t]his encompasses unjustified
denunciations or excessive retaliatory measures, but not legitimate reprisals or
courses of action under Art. 60." Mark E. Villiger, Customary International Law and
Treaties 371-72 (1985) (footnote omitted); see also Schwelb, supra note 21, at 313-14
(discussing examples of legitimate repudiation of treaties).
29 For a discussion of this portion of the law of treaties, see Setear, Iterative Perspective, supra note 3.
- Article 60 does not require termination or suspension following a material
breach. Rather, such action "entitles" the victim of the breach to certain action. See
Vienna Convention, supra note 15, art. 60(1)-(2), at 346.
29
1997]
Responses to Breach of a Treaty
that does not give rise to a release option for the victims of that
breach but loses from a breach that gives rise to such a release
option-that is, the Article simply assumes that the analysis of
Article 60 is important to the breacher as well as to the victim.
Likewise, the Article undertakes no express analysis of when
the victim of a treaty breach might prefer to be released from
some, rather than all, of its obligations. This power to pick and
choose which obligations will remain in force is presumably of
some benefit to the victim of a breach, who could thereby abandon those provisions that have proven most burdensome and
preserve the obligations that it considers most beneficial. Nonetheless, the Article undertakes no further explicit discussion of
the benefits of such selectivity.
Article 60 specifies that its rules are what might be thought of
as "default" rules: the parties are free to override the rules of
Article 60 in a particular treaty by express provision.' The Vienna Convention generally specifies "default" rules, so Article
60 provides no exceptional interest on this score.32 More importantly, there do not seem to be very many particular treaties in
which the parties have overridden the default rules of Article
602' The treaties associated with General Agreement on Tariffs
-1Article 60(4) of the Vienna Convention provides: "The foregoing paragraphs
are without prejudice to any provision in the treaty applicable in the event of a
breach." Id. at 346; cf. Quincy Wright, The Termination and Suspension of Treaties,
61 Am. J. Int'l L. 1000, 1000 (1967) (discussing practice and proposing right of unilateral suspension of treaty's operation, in whole or in part, on notice charging violation,
but without right of termination or withdrawal absent agreement or adjudication by
International Court of Justice).
32The Vienna Convention provides numerous rules that set forth explicit default
procedures but allow the parties to establish their own rules. For example, Article 40
provides that "[u]nless the treaty otherwise provides, the amendment of multilateral
treaties shall be governed by the following paragraphs." Vienna Convention, supra
note 15, at 341. There are nonetheless certain provisions from which the parties may
not deviate. For example, Article 53 provides that "[a] treaty is void if, at the time of
its conclusion, it conflicts with a peremptory norm of general international law." Id.
at 344.
13The Restatement (Third) section on the termination and suspension of treaties
follows Article 60(1) and 60(2) of the Vienna Convention. It notes, however, that:
While Subsection (2)(a) provides that unanimous action by the other parties is
required to suspend or terminate a multilateral agreement for material breach
by one or more parties, it is not uncommon for an agreement to provide
otherwise.... Thus, Article 5 of the United Nations Charter authorized the
General Assembly, upon the recommendation of the Security Council, to
suspend the membership of a member against whom enforcement action has
24
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and Trade ("GATT") and the World Trade Organization
("WTO") are the only prominent exception of which this author
is aware; these treaties state that parties may not exercise any
release option under Article 60 until the conclusion of the
(sometimes lengthy) dispute-resolution procedures set forth in
the GATT and WTO? 4
B. The Consistency of the Broad Structure of the Rules of Release
with the Basic Theories of RationalistIR Theory
The Section above sets forth the rules of release for treaty
law, as set forth in Article 60 of Vienna Convention. Are they
good rules? This Section attempts to answer this question by
recounting and extending the work of certain political scientists
specializing in IR theory. One could, of course, ask whether the
textual statement of rules of international law are good rules by
asking about their internal consistency, or about their consistency with the true intentions of their drafters, or about their
adherence to principles of natural law, or about their utility in
promoting a political cause. 5 This Article, however, asks
been taken under Chapter VII; Article 6 permits expulsion for persistent
violation. Similarly, the International Monetary Fund Agreement permits
expulsion for persistent failure to comply. The agreements creating such
organizations will normally specify the procedures to be followed and the
majorities required for such action.
Restatement (Third), supra note 21 § 335, cmt. d (citations omitted).
For example, the Dispute Settlement Understanding adopted during the Uruguay Round Agreements requires member states to adhere to its dispute settlement
procedures in the event of a perceived violation. Understanding on Rules and Procedures Governing the Settlement of Disputes, done Apr. 15, 1994, 33 I.L.M. 112
(1994) (entered into force Jan. 1, 1995). Article 23 of the Dispute Settlement Understanding provides, "[w]hen Members seek the redress of a violation of obligations or
other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall
have recourse to, and abide by, the rules and procedures of this Understanding." Id.
at 128; see also William J. Aceves, Lost Sovereignty? The Implications of the Uruguay Round Agreements, 19 Fordham Int'l L.J. 427, 436-43 (1995) (discussing details
of Dispute Settlement Understanding).
3 Thomas Franck has blended several of these elements with a four-part test to determine the legitimacy of any rule:
These indicators of rule-legitimacy in the community of states are: determinacy,
symbolic validation, coherence, and adherence.... The hypothesis asserts that,
to the extent a rule, or rule process, exhibits these four properties it will exert a
strong pull on states to comply. To the extent these properties are not present,
the institution will be easier to ignore and the rule easier to avoid by a state
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25
whether the rules of Article 60-or at least that portion of those
rules that is, as discussed above, the focus of this piece-are
consistent with the Weltanschauung of "rationalist" IR theorists.36
tempted to pursue its short-term self-interest.
Thomas M. Franck, The Power of Legitimacy Among Nations 49 (1990); see also
Thomas M. Franck, Legitimacy in the International System, 82 Am. J. Int'l L. 705
(1988) (arguing that the extent to which nations obey a rule depends on their perception of its legitimacy). For an extensive application of Franck's theory in the context
of the Vienna Convention, see Setear, Iterative Perspective, supra note 3, at 162-73.
The author has elaborated on these elements in another article:
"Determinacy" is that which makes [a rule's] message clear .... "Symbolic
validation" is the procedural use of ritual and historical pedigree in connection
with the perpetration of a substantive rule.... Coherence is the degree of
connection between rational principles on the one hand, and a rule... on the
other.... [Finally,] [a]dherence is the depth and breadth of the system used to
interpret the relevant rules.
Id. at 163 (footnotes omitted).
Some scholars of international law have specifically examined the concept of material breach. See Kirgis, supra note 21; Chinkin, supra note 26; Schwelb, supra note
21; see also Richard B. Bilder, Address, Breach of Treaty and Response Thereto, 61
Proc. Am. Soc'y Int'I L. 193 (1967) (discussing legal, political, and other considerations affecting decisions on treaty compliance); Albert J. Esgain, The Spectrum of
Responses to Treaty Violations, 26 Ohio St. L.J. 1 (1965) (examining factors and circumstances motivating the decision to choose a specific response to breach of treaty).
For an article that incorporates some rationalist elements into the study of breach,
but without a great deal of consideration of the special aspects of the international
legal system, see Richard Morrison, Efficient Breach of International Agreements, 23
Deny. J. Int'l L. & Pol'y 183 (1994).
- Kenneth Abbott applies a comparable "rational design hypothesis" to the study
of arms control agreements:
Rationalist IR theory assumes that states act as rational entities pursuing their
national interests as they see them. In situations of interdependence, the
theory suggests, states will, and should, tend to design their international
agreements and institutions to address the particular strategic situations in
which they find themselves.
Abbott, Trust But Verify, supra note 6, at 1 (footnotes omitted). According to Abbott, the rational-design hypothesis has important implications for the study of international relations:
[I]t suggests that scholars can reason backward from the provisions of
international agreements and the procedures and institutions they establish to
conclusions about the strategic relationships of the parties to those arrangements....
Conversely, the rational design hypothesis suggests that scholars can reason
forward from a theoretical understanding of particular issue areas to richer
explanations of the meaning and function of international agreements, procedures and institutions.
Id. at 2 (footnotes omitted).
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Rationalist IR theorists, like other IR theorists, take as the
subject of their study that subset of human behavior known as
international relations (or international politics, if one prefers).
International law is a subset of international relations.37 Indeed,
in the absence of centralized authorities for interpreting and enforcing international law, the rules of international law are inextricably bound up with international politics-even more directly than domestic law is a matter of domestic politics.38 The
question of how international cooperation occurs is one of the
questions asked by IR theorists, and international law is clearly
one possible method for promoting international cooperation. 9
"Rationalist" IR theorists view the world through roughly the
same clear if narrow lens used by those other scholars who
might challenge the notion that "social science" is an oxymoron-some sociologists, a few historians or anthropologists,
many (other) political scientists, and virtually every economist. '
"Reflectivist" IR theorists are less concerned with intrinsic
structure and regularity, and more concerned with ideation and
particularism, than rationalist IR theorists." The labels of
31 Scholars disagree however, as to the exact definition of international relations.
See James E. Dougherty & Robert L. Pfaltzgraff, Jr., Contending Theories of International Relations 12-30 (3d ed. 1990). According to Viotti and Kauppi, international relations is "[t]he total of political, social, economic, cultural, and other interactions among states (and even nonstate) actors." Paul R. Viotti & Mark V. Kauppi,
International Relations Theory 595 (1987).
31 Setear, Iterative Perspective, supra note 3, at 139; Burley, supra note 2, at 205-06.
31As noted by Burley, "if law-whether international, transnational or purely domestic--does push the behavior of states toward outcomes other than those predicted
by power and the pursuit of national interest, then political scientists must revise their
models to take account of legal variables." Burley, supra note 2, at 206.
40 The assumption of rationalism among certain IR theorists assumes that nations
"have consistently ordered preferences and choose among alternative courses of action so as to further those preferences." Abbott, IR Prospectus, supra note 3, at 350.
Abbott adds:
The rationality assumption is essential to structural theory. It allows the
analyst to interpret the actions of states as meaningful, purposive conduct,
and-together with the assumption of unity-to reason directly from structural
incentives to state responses without considering internal decision-making
processes. For precisely these reasons, the assumption of state rationality has
also been a "cornerstone of Realism."
Id. at 350-51 (quoting Duncan Snidal, The Game Theory of International Politics, 38
World Pol. 25, 38 (1985)) (other citations omitted).
41 Rationalist theories assume fixed preferences by states.
In contrast, reflectivist
theories recognize that preferences vary and change. For the distinction between ra-
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"neoliberal institutionalism" (or simply "institutionalism" or
"regime theory") and "neorealism" (or "realism") are frequently attached to the two leading schools of rationalist IR
theory. These two schools differ significantly in their view of
the utility of international law,4 2 but they use quite similar tools
to draw their very different conclusions. 3 Holding the subtleties
of the two theories considered separately, I now simply press on
to try to use the often-abstract tools of rationalist IR theory to
produce concrete implications for the particular rules of international law."
1. The IteratedPrisoner'sDilemma and Its Application to the
Existence of the Release Option
The dominant theoretical characterization of international
cooperation in rationalist IR theory is as an iterated "Prisoner's
Dilemma."
The Prisoner's Dilemma ("PD") is a gametheoretical construct, loosely based on a story involving two
prisoners offered a particular plea bargain by a prosecuting attorney, in which each individual faces a difficult choice.45 If both
tionalist and reflectivist schools of thought in IR theory, see Robert 0. Keohane, International Institutions: Two Approaches, 32 Int'l Stud. Q. 379, 382 (1988); see also
infra note 8 (discussing "constructivist" IR theory).
42 Neorealists emphasize the anarchic nature of the international system and argue
that systemic factors influence state action. While neoliberal institutionalists recognize the anarchic element of international relations, they are more sanguine about
the prospects of international cooperation. Specifically, they argue that institutions
can induce cooperative behavior among states. See generally David A. Baldwin,
Neoliberalism, Neorealism, and World Politics in Neorealism and Neoliberalism 3
(David A. Baldwin ed., 1993) (describing key disagreements between neorealists and
neoliberals); Keohane & Martin, supra note 9 (1995) (arguing that international institutions complement power realities in encouraging state cooperation); Mearsheimer,
supra note 2 (arguing against neoliberal institutionalism but more or less fairly describing it). Realism has typically denied the relevance of international law. In contrast, institutionalists recognize the possible relevance of international law-at least if
one recognizes "law" in the broader context of regimes or institutions. For a more
elaborate discussion of the distinctions between neorealism and neoliberal institutionalism, see supra note 9.
43
See supra note 11.
For a comparable effort focusing on the role of "iteration" in the law of treaties,
see Setear, Iterative Perspective, supra note 3.
45 The Prisoner's Dilemma ("PD") is a well-known model used to describe how the
actions of rational actors can lead to suboptimal behavior. The Prisoner's Dilemma is
typically modeled as a 2 x 2 matrix. See Eric Rasmusen, Games and Information: An
Introduction to Game Theory 16-18, 30 (2d ed. 1994). The Prisoner's Dilemma is
44
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individuals cooperate with one another, for example, by refus-
ing to "squeal" on each other, then they will both be better off
than if both individuals refuse to cooperate with one another. If
only one individual takes steps to cooperate with the other,
however, the uncooperative individual will benefit more than
the cooperative individual.
Indeed, this exploitation in fact
gives the uncooperative individual his highest possible payoff
from the interaction with his fellow prisoner. (See Figure 1.)
FIGURE 1: THE PRISONER'S DILEMMA
PLAYER
A COOPERATE
PLAYER B
DEFECT
COOPERATE
DEFECT
(3,3)
(0,5)
(5,0)
(1,1)
The simultaneous possibility that an uncooperative individual
can exploit a cooperative individual and that mutual cooperation will benefit both parties more than mutual uncooperativeness strikes IR theorists as an accurate description of many
situations in international relations. 6 Consider two rival nations
pondering a military build-up. An arms race may make both
widely used in political science and economics. See generally Duncan Snidal, The
Game Theory of International Politics, 38 World Pol. 25 (1985) (applying game models to range of international political, military, and economic issues); John A.C.
Conybeare, Public Goods, Prisoners' Dilemmas and the International Political Economy, 28 Int'l Stud. Q. 5 (1984) (using theory of public goods and PD to examine incentives for cooperation in international trade). For an application of the PD to issues of civil procedure and international relations simultaneously, see John K. Setear,
The Barrister and the Bomb: The Dynamics of Cooperation, Nuclear Deterrence,
and Discovery Abuse, 69 B.U. L. Rev. 569 (1989).
See generally Joseph M. Grieco, Realist Theory and the Problem of International Cooperation: Analysis with an Amended Prisoner's Dilemma Model, 50 J. Pol.
600 (1988) (using "Amended" Prisoner's Dilemma to depict relative-gains element of
state preferences and the relative-gains problem for cooperation); Charles Lipson,
International Cooperation in Economic and Security Affairs, 37 World Pol. 1 (1984)
(arguing that repetition and other situational factors induce cooperation despite Prisoner's Dilemma); Arthur A. Stein, Coordination and Collaboration: Regimes in an
Anarchic World, 36 Int'l Org. 299 (1982) (examining nature of international cooperative regimes, their formation, maintenance, and dissolution).
46
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nations worse off than if both had spent the money on domestic
investments. Mutual cooperation, i.e., mutual restraint in military expenditures, benefits both nations more than mutual defection, i.e., high mutual expenditures on weaponry. Yet there
is a danger of exploitation facing a cooperative nation if its rival
does not also cooperate. If one nation refuses to cooperate (and
obtains militarily useful weaponry) while the other nation cooperates (and so does not obtain such weaponry), then the cooperative nation may find itself worse off than if both nations had
defected: The cooperative nation faces a better-armed rival,
whereas mutual defection would at least have led to equally
matched (if otherwise impoverished) rivals.
The "iterated" version of a Prisoner's Dilemma involves multiple opportunities for interaction ("iterations") between the involved parties.' The iterated Prisoner's Dilemma ("IPD") not
only seems to many to bear a closer resemblance to international politics than the one-shot PD, but also offers a greater
opportunity for rational cooperation. ' The analysts of various
' The iterated Prisoner's Dilemma ("IPD") is, as presented here and as typically
presented elsewhere, a game of common knowledge-that is, both players have exactly the same knowledge about the payoffs, and about how many moves have occurred, and about what each player's move during each previous iteration was, and so
forth. The PD is also typically presented as a game involving the simultaneous,
rather than sequential, choice of moves by the players (and thus is typically presented
as a game of "imperfect" information). The absence of any actions by "Nature," such
as a random variance in the payoffs, means that the typical Prisoner's Dilemma is
also a game of "complete" and "certain" information. See Rasmusen, supra note 45,
at 45 (presenting one-shot PD as involving common knowledge, and imperfect and
symmetric information with certainty); id. at 121-23 (presenting IPD as structurally
identical to one-shot PD except for its repetitions). For similar presentations of the
PD and IPD, see Drew Fundenberg & Jean Tirole, Game Theory 9-10, 110-12 (1991);
Douglas G. Baird et al., Game Theory and the Law 33-34, 166-67 (1994). See generally Rasmusen, supra note 45, at 44-48 (discussing various structures of knowledge
and information in games).
41 In the IPD, the long-term benefits of cooperation can outweigh the short-term
benefits of defection. See Robert Axelrod, The Evolution of Cooperation 20 (1984)
(explaining reasons for consistent success of tit-for-tat strategy); James D. Morrow,
Game Theory for Political Scientists 262-68 (1994); Gary Bornstein, Ido Erev &
Harel Goren, The Effect of Repeated Play in the IPG and IPD Team Games, 38 J.
Conflict Resol. 690 (1994) (discussing different outcomes between intergroup public
goods game and intergroup prisoner's dilemma game); Jean-Frangois Mertens, Repeated Games, in The New Palgrave: Game Theory 205 (John Eatwell et al. eds.,
1987) (describing different types of iterative games and their respective outcomes).
For a discussion of iteration in the context of the law of treaties, see Setear, Iterative
Perspective, supra note 3.
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computer simulations have argued that the most effective strategy for encouraging (and benefiting from) cooperation is a "titfor-tat" strategy in which an individual party cooperates as a
matter of initial policy and then, in each subsequent iteration,
adopts whatever policy---cooperation or defection-that its rival
used in the immediately previous iteration."' If the rival cooperated in the previous iteration, then a nation using the tit-for-tat
strategy cooperates in the current iteration; if the rival defected
in the previous iteration, then a nation using a tit-for-tat strategy
defects in the current iteration.
If we extend the view of international cooperation as an IPD
to the question of treaty law, then the general idea behind Article 60-the release of parties from their treaty obligations after
certain kinds of important breaches-is perfectly sensible in
light of the utility of the tit-for-tat strategy in promoting cooperation." Suppose that the goal of a treaty is the restriction of a
41 Robert Axelrod conducted a computer-moderated Prisoner's Dilemma tournament to determine the best strategy in an IPD. Numerous entries of varying complexity were run against each other. The most successful strategy was tit-for-tat. The
tit-for-tat strategy required an individual to cooperate in the first round of interaction
and thereafter match their opponent's moves in the subsequent rounds. Axelrod, supra note 48, at vii-viii.
10The tit-for-tat strategy has generated a good deal of attention in terms of its potential applicability to international relations. Axelrod and Keohane have discussed
in the abstract its potential utility in international politics. See Robert Axelrod &
Robert 0. Keohane, Achieving Cooperation Under Anarchy: Strategies and Institutions, 38 World Pol. 226 (1986); Robert 0. Keohane, Reciprocity in International
Relations, 40 Int'l Org. 1 (1986) (discussing "reciprocity" in international relations
and its relationship to tit-for-tat strategy); cf. Alan 0. Sykes, "Mandatory" Retaliation for Breach of Trade Agreements: Some Thoughts on the Strategic Design of Section 301, 8 B.U. Int'l L.J. 301, 309, 320 (1990) (discussing tit-for-tat strategy in Axelrod's tournament and arguing that section 301 of U.S. trade act has requirements that
make it "very much a 'tit for tat' policy"); J. Mark Ramseyer, Legal Rules in Repeated Deals: Banking in the Shadow of Defection in Japan, 20 J. Legal Stud. 91, 110
n.63 (1991) (reaction of Japanese banks to certain defaults "much like the tit-for-tat
strategy so successful in evolutionary game theory research"). See generally Marc L.
Busch & Eric R. Reinhardt, Nice Strategies in a World of Relative Gains, The Problem of Cooperation Under Anarchy, 37 J. Conflict Resol. 427 (1993) (presenting
theoretical and simulation-oriented argument that cooperation can emerge even
when the realists' strong concern for relative gains is warranted); Stephen J. Majeski
& Shane Fricks, Conflict and Cooperation in International Relations, 39 J. Conflict
Resol. 622 (1995) (presenting experimental evidence that availability of communication increases likelihood of cooperation when each "player" is actually a team).
There have been a number of more specific applications to international relations as
well. For discussions relating to World War I or its origins, for example, see Axelrod,
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costly arms race that, if unrestricted, is likely to produce only
greater insecurity and ruinous military expenditures. If cooperation on this matter generally presents parties with an IPD,
then cooperation on this matter through the specific medium of
an arms-control treaty is similarly likely to present the parties
with an IPD. Adherence by a party to its obligations under such
a treaty would naturally seem to be the "cooperative" strategy,
while a breach would seem to be the "defecting" strategy." Article 60 thus gives legal blessing to an essential part of the tit-fortat strategy: If one party defects (i.e., breaches materially in a
bilateral agreement) in a given iteration, then the other party
may legally defect (i.e., is released from its own obligations) in
the next iteration. This alignment of international law and the
teachings of rationalist IR theory seems laudable. If a breach by
one party never released other parties from their obligations,
then the victims of a breach would need to choose between
obeying international law and protecting themselves against repeated exploitation by the breacher. Removing parties from the
horns of such a dilemma creates a system, i.e., treaty law, that is
more likely to encourage cooperation to evolve between parties
faced with an IPD 2
supra note 48, at 73-87 (discussing "live and let live" norm in quiet sectors of trenches
in World War I); John H. Maurer, The Anglo-German Naval Rivalry and Informal
Arms Control, 1912-1914, 36 J. Conflict Resol. 284 (1992) (arguing that Winston
Churchill devised successful tit-for-tat strategy to allow restraint of naval arms race
between Great Britain and Germany); Stephen Van Evera, Why Cooperation Failed
in 1914, 38 World Pol. 80, 81-83 (1985) (arguing that tit-for-tat strategy could not by
itself have overcome barriers to cooperation existing before World War I due to a
half-dozen widely shared misperceptions of military and political realities). See generally Frank C. Zagare, The Dynamics of Deterrence 27 n.22 (1987) (stating that "in
mutual deterrence situations that share the structural characteristics of this particular
game, tit-for-tat strategies are necessary for deterrence stability"). Further afield
from the topic of this Article, there have been some fascinating examinations of biological behavior consistent with the "adoption" of tit-for-tat strategy. Manfred Milinski, Tit for Tat in Sticklebacks and the Evolution of Cooperation, Nattjre, Jan. 1987,
at 433; Gerald S. Wilkinson, Reciprocal Food Sharing in the Vampire Bat, Nature,
Mar. 1984, at 181. See generally Robert Axelrod & William D. Hamilton, The Evolution of Cooperation, 211 Science 1390 (1981) (analyzing implications of tournament
results for biology, especially evolutionary biology).
51See Setear, Iterative Perspective, supra note 3, at 37-38.
52 A good deal of work focused on simulations rather than on international relations (or biology) has also sprung up concerning whether the tit-for-tat strategy that
proved so successful in Axelrod's tournaments is an equally advantageous approach
in game-theoretical tournaments operating under a different set of assumptions. See,
32
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e.g., Jack Hirshleifer & Juan Carlos Martinez Coll, What Strategies Can Support the
Evolutionary Emergence of Cooperation?, 32 J. Conflict Resol. 367 (1988) (arguing
that comparative utility of tit-for-tat strategy depends on, inter alia, whether tournament involves elimination of initially unsuccessful strategies); Per Mollander, The
Prevalence of Free Riding, 36 J. Conflict Resol. 756 (1992) (stating that prevalence of
cooperation declines significantly when one moves from two-person iterated IPD to
n-person IPD). The topic of "noise"-the degree to which players misinterpret the
actions of others or fail to effectuate their own choices--constitutes a sub-literature
of its own. See, e.g., Hirshleifer & Coil, supra (arguing that level of noise significantly affects comparative success of tit-for-tat strategy); David Kraines & Vivian
Kraines, Evolution of Learning Among Pavlov Strategies in a Competitive Environment with Noise, 39 J. Conflict Resol. 439 (1995) (exploring success of learningoriented "Pavlov" strategies in noisy IPD); Curtis S. Signorino, Simulating International Cooperation Under Uncertainty: The Effects of Symmetric and Asymmetric
Noise, 40 J. Conflict Resol. 152 (1996) (examining effects of various kinds of noise
and concluding that contrite tit-for-tat strategy is generally one of the best performers); Jianzhong Wu & Robert Axelrod, How to Cope with Noise in the Iterated Prisoner's Dilemma, 39 J. Conflict Resol. 183 (1995) (presenting theoretical and simulation-oriented argument that tit-for-tat strategy, or a "contrite" modification that does
not counter-counter-defect when the opponent's counter-defection is caused by own
erroneous defection, is highly effective in an environment involving "noise" in effectuation of strategies); cf. John Shepard Wiley, Jr., Reciprocal Altruism as a Felony:
Antitrust and the Prisoner's Dilemma, 86 Mich. L. Rev. 1906, 1916-28 (1988)
(exploring applicability of "reciprocity" and tit-for-tat strategy to antitrust law and
canvassing various difficulties in applying Axelrod tournaments to real-life marketplace). The so-called "Folk Theorem," which predates Axelrod's work, holds that a
nearly infinite variety of strategies exists that satisfy reasonable "equilibrium" conditions for judging the strategy successful. See Rasmusen, supra note 45, at 124-29
(discussing Folk Theorem and its component assumptions); Fundenberg & Tirole,
supra note 47, at 150-60; see also Rasmusen, supra note 45, at 142, 395-96 (showing
that so-called "grim strategy," which defects forever after any defection by opponent,
is a "perfect" equilibrium in an infinitely repeated game and that tit-for-tat strategy is
not a perfect equilibrium); Baird et al., supra note 47, at 171-73 (discussing tit-for-tat
strategy and other strategies that make for symmetric subgame perfect Nash
equilibria in infinitely repeated game with sufficiently high discount factor). Axelrod
appears to have been well aware of this implication of the Folk Theorem for his own
work. See Axelrod, supra note 48, at 15 ("It is the sad news that if the future is important, there is no one best strategy.").
As one might expect, therefore, there are situations in which the tit-for-tat strategy
is not the most advantageous strategy to adopt. Indeed, Axelrod himself noted that
the tit-for-tat strategy would not have prevailed in the first of his own tournaments if
certain other, equally simple strategies had been entered. Axelrod, supra note 48, at
39.
One might also note that the tit-for-tat strategy typically does not meet one popular
characterization of a desirable "equilibrium"--the "evolutionarily stable strategy,"
which is a strategy proof to invasion by other (mutant) strategies-in an infinitely repeated game. See Robert Boyd & Jeffrey P. Lorberbaum, No Pure Strategy Is Evolutionarily Stable in the Repeated Prisoner's Dilemma Game, Nature, May 1987, at 58
(arguing that no "pure" strategy-that is, a strategy that determines its action without
reference to some random factor-is evolutionarily stable in an IPD with a fixed
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2. The Theory of Public Goods and the Variationsin the Release
Option According to the Number of Partiesto the Breached
Treaty
The story of the IPD is quite consistent with-indeed, is often
presented in the IR-theory literature as a result of-the problem
of "public goods" or "collective action."53 In situations involving
the production of public goods, the participants ponder the production of some "public" good that will yield more in aggregate
benefits than it will cost in aggregate production expenditures.'
The "public" aspect of the good is that, once produced, it will be
difficult to prevent the general public from enjoying the benefits
of the good, regardless of whether those parties contributed to
the costs of its productionf The Cold War notion of "flexibleresponse deterrence" or the more modern goal of a "thicker
ozone layer" are examples of such "public" goods in international relations. When the United States pledged to use its own
nuclear weapons against the Soviet Union if the latter were to
invade western Europe with purely conventional forces, Belgium was likely to reap any benefits from such a promise by the
United States whether or not Belgium paid for the relevant nuclear forces of the United States. The Soviets, after all, would
change of ending after each round); cf. Elliott Sober, Stable Cooperation in Iterated
Prisoners' Dilemmas, 8 Econ. & Phil. 127 (1992) (discussing IPD in context of various
definitions of dynamic stability). See generally, Rasmusen, supra note 45, at 110-15
(discussing evolutionarily stable strategies).
The tit-for-tat strategy is therefore an intriguing and frequently successful approach
to an IPD, but it is not the only possible successful approach to the IPD in either theory or (simulated) practice.
53 See Conybeare, supra note 45; Keohane, After Hegemony, supra note 3, at 6769; Bruce M. Russett & John D. Sullivan, Collective Goods and International Organization, 25 Int'l Org. 845 (1971); Stein, supra note 46, at 307-08. But see Duncan
Snidal, Relative Gains and the Pattern of International Cooperation, 85 Am. Pol. Sci.
Rev. 701, 720 (1991) (suggesting that unanswered questions-whether the relevant
international goods are truly public and why relative decline of the largest state does
not always result in the collapse of public goods provision-raise difficulties with the
public goods analysis).
14 See John Head, Public Goods and Public Policy, 17 Pub. Fin. 197 (1962); Paul A.
Samuelson, The Pure Theory of Public Expenditure, 36 Rev. Econ. & Stat. 387
(1954).
51Jointness of supply and non-excludability are the principal components of a public good. William J. Baumol & Alan S. Blinder, Economics: Principles and Policy
543-44 (3d ed. 1985). Each element is relevant in the context of international public
goods. Abbott, IR Prospectus, supra note 3, at 377-78.
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have found it difficult to leap-frog the Federal Republic of
Germany and conquer Belgium even if the United States, in retaliation for Belgian intransigence, had restated its promise as
"the United States will launch nuclear weapons against the invasion of non-Belgian territory in western Europe." An increase
in the thickness of the ozone layer is another example of a public good in international relations. The ozone layer circulates
above national boundaries without restriction, and so a reduction in the production of ozone-depleting substances benefits all
nations whether they have made a contribution to that reduction or not. No fence in the sky can contain the benefits of a
thicker ozone layer to those nations that "produce" that thicker
ozone layer by reducing their own production or consumption
of ozone-depleting substances.
Because a party can benefit from production of a public good
without paying for that good, each party has an incentive to
withhold its contribution to that good's production of the good
in hopes of obtaining a "free ride" on the benefits of the eventually produced good. If all parties act in accord with this hope,
however, there will be no contributions made at all, and thus no
public good will actually be produced. 6
Efforts to produce the international equivalent of a public
good may nonetheless go forward with some cooperative
scheme, such as a treaty, that involves collective action.' Participants will still have an incentive to shirk their promises and
to conceal their shirking in hopes of obtaining a free ride, but
monitoring and sanctioning by other parties can reduce these
The problems of producing public goods were identified by Olson in the domestic setting:
[D]espite the force of patriotism, the appeal of the national ideology, the bond
of a common culture, and the indispensability of the system of law and order,
no major state in modern history has been able to support itself through
voluntary dues or contributions.... Taxes, compulsory payments by definition,
are needed. Indeed, as the old saying indicates, their necessity is as certain as
death itself.
Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of
Groups 13 (1965); see also Jon Elster, The Cement of Society: A Study of Social Order (1989) (discussing free-rider problem as main obstacle to cooperation).
0 See also Elinor Ostrom, Governing the Commons: The Evolution of Institutions
for Collective Action 2-7 (1990) (arguing that assumptions of models explaining freerider problems should not be taken as fixed); Garrett Hardin, The Tragedy of the
Commons, 162 Science 1243 (1968).
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35
difficulties. What is important for present purposes, however, is
the belief of economists (and IR theorists in their wake) that the
difficulties of producing a public good increase as the number of
parties necessary to produce the good increases.58 Problems of
collective action,59 such as negotiating the terms of production or
monitoring those terms for compliance, are thought to rise more
than proportionally with the number of parties involved.'
According to Olson, "the larger the group, the farther it will fall short of providing an optimal amount of a collective good." Olson, supra note 56, at 35 (emphasis
omitted). Olson provides three explanations for this phenomenon:
First, the larger the group, the smaller the fraction of the total group benefit
any person acting in the group interest receives, and the less adequate the
reward for any group-oriented action, and the farther the group falls short of
getting an optimal supply of the collective good, even if it should get some.
Second, since the larger the group, the smaller the share of the total benefit
going to any individual, or to any (absolutely) small subset of members of the
group, the less the likelihood that any small subset of the group, much less any
single individual, will gain enough from getting the collective good to bear the
burden of providing even a small amount of it; in other words, the larger the
group the smaller the likelihood of oligopolistic interaction that might help
obtain the good. Third, the larger the number of members in the group the
greater the organization costs, and thus the higher the hurdle that must be
jumped before any of the collective good at all can be obtained. For these
reasons, the larger the group the farther it will fall short of providing an
optimal supply of a collective good, and very large groups normally will not, in
the absence of coercion or separate, outside incentives, provide themselves
with even minimal amounts of a collective good.
Id. at 48 (footnote omitted). But see Russell Hardin, Collective Action (1982)
(asserting collective action problem is fallacious when analysis is iterated rather than
static); Miles Kahler, Multilateralism With Small and Large Numbers, 46 Int'l Org.
681 (1992) (examining multilateralism and suggesting more efficient designs drawn
from domestic politics for large-number cooperation); Michael Taylor, The Possibility of Cooperation (1987) (critiquing public goods provision rationale for the existence of the state and offering detailed study of cooperation in absence of state or
other forms of "coercion"). The literature on "k-groups" also suggests the possible
emergence of cooperation even in large groups. See James A. Caporaso, International Relations Theory and Multilateralism: The Search for Foundations, 46 Int'l
Org. 599 (1992).
51 The collective action problem has been identified in numerous settings. Olson's
is the seminal work. See Olson, supra note 56; see also, e.g., Elster, supra note 56, at
17 (describing structure of problem and why cooperation may nonetheless be rational); Walter Nicholson, Microeconomic Theory 612 (2nd ed. 1978) (noting impossibility of excluding individuals from deriving benefits from a public good); R.H.
Coase, The Lighthouse in Economics, 17 J.L. & Econ. 357 (1974) (examining and critiquing history of the lighthouse as economists' favored example of a public good);
Russett & Sullivan, supra note 53, at 847 (using air pollution control as example of
positive externality or "free ride").
10 For some, an example from domestic relations may be useful. Imagine a simple
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What are the implications of the problem of collective action
for Article 60 of the Vienna Convention? Article 60 gives parties an option to release themselves from their treaty obligations-that is, gives them legal grounds for withdrawing from
their obligations to produce whatever "good" is the subject matter of the treaty.' If treaties involve the production of public
goods, and if the difficulties of collective action described above
apply, then treaties with large numbers of parties should generally be more difficult to create (and to monitor) than treaties
with small numbers of parties. If Article 60 were consistent with
these rationalist IR theories, then international law should hesitate longer before releasing parties from multilateral obligations
than from bilateral obligations; if multilateral treaties require a
larger per-party investment to create, then release from a multilateral (vice bilateral) treaty represents the abandonment of a
greater per-party investment in the creation and monitoring of
the obligations. 2
agreement among housemates--"let's take turns taking out the kitchen trash"-and
assume that the health and olfactory benefits of taking out the trash regularly will accrue to all parties in the house equally and non-excludibly. If such an agreement is
reached between two roommates, the transaction costs associated with making and
monitoring the agreement are low. One night at dinner, someone says, "let's alternate taking out the trash every night." If problems develop, the two parties talk them
over. A given party need only keep one other party in line to have a smoothly functioning agreement. The situation is different in a house with, say, ten roommates.
There will be significantly greater inconvenience in getting all ten together to make
the agreement and modify it; a list will need to be made of whose turn it is on each
night to take out the trash; people may neglect their obligations two nights in a row,
presenting some difficulty in determining the exact party responsible; a fastidious or
rule-oriented roommate must now keep track of nine other people and their garbagerelated activities; and so forth.
In contrast to the taking out of trash, a good such as a sandwich would be a private
good. One person's consumption of the sandwich prevents others from consuming
the good, so consumption of the sandwich is rivalrous. One may also effectively bar
others from access to the good (at least with a private refrigerator and a lock), so the
good is excludible.
61 See supra text accompanying notes 16-34.
6 Those fearful that the formulation of the previous sentence breaks the taboo
against giving weight to "sunk costs" in a marginalist framework may reformulate
that sentence as stating that abandonment of a multilateral treaty will force higher
per-party reconstitution costs on the parties than abandonment of a bilateral treaty
and thus involves a sacrifice of future opportunities that, properly discounted by the
likelihood of reconstitution and the relevant time-discount rate, is a cost to parties
that flows from the possibility that some parties will take advantage of their release
option.
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Is Article 60 in fact stingier in granting the release option to
parties in multilateral treaties than in bilateral treaties, as consistency with the rational-design hypothesis would predict? The
answer is "yes," for two reasons. The first reason is that meeting the conditions for obtaining any release option are more difficult for parties to multilateral agreements, and the second reason is that the release option obtained is of narrower scope for
parties to multilateral agreements than for parties to bilateral
agreements. This Article briefly takes up each reason in turn.
What are the differences between the conditions of obtaining
some release option in bilateral vice multilateral agreements?
Materiality of the breach is a sufficient condition for granting a
release option to the victims of a breach of a bilateral agreement, but is not a sufficient condition for granting a release option to the victims of a breach of a multilateral agreement. Parties to a multilateral agreement therefore face some extra
hurdles to obtaining the release option. In addition, materiality
of breach is the only condition necessary for obtaining a release
option regarding bilateral obligations, and remains only a necessary condition for obtaining a release option regarding multilateral obligations.63 Parties seeking release from a multilateral
agreement therefore inevitably face more hurdles than parties
seeking release from a bilateral agreement. One can therefore
conclude quite unequivocally that release from a bilateral obligation is easier to obtain than release from a multilateral obligation, just as the rational-design hypothesis would predict.
What is the scope of the release obligation obtained once the
conditions relevant to each kind of agreement (bilateral and
multilateral) are met? For bilateral agreements, the release option allows for either suspension or termination, while the release option obtained with respect to multilateral agreements
allows only for suspension. ' Parties to multilateral agreements
must therefore continue to invest resources in standing ready to
For a discussion of sunk costs, see Arthur L. Stinchcombe, Constructing Social
Theories 120-21 (1968) ("When an action in the past has given rise to a permanently
useful resource, we speak of this resource as a 'sunk cost."' Because sunk costs cannot be recovered, they should "not enter into current calculations of rational policy.").
63 See supra text accompanying notes 17-18, 24-25.
64 See supra text accompanying notes 24-26.
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perform their obligations-if the breacher recants, as it were,
then even the victims who obtained and exercised their release
option must return to the fold. 5 Refusing to invest those resources risks the costs associated with being judged a breaching
party oneself-if the initial breacher later resumes compliance.'
Parties to a bilateral agreement, in contrast, may immediately
terminate the agreement and move on without taking that risk.
Release from a multilateral vice bilateral agreement is therefore
both more difficult to obtain and less valuable once obtained.
C. The (In)consistency of the FinerStructureof the Rules of
Release with Extensions of RationalistIR Theory
The previous Section examined the consistency of wellestablished IR theory with the two broad contours of Article
60-the availability of release as a result of breach, and the differences in the rules of release based on the number of parties
to the breached agreement-and concluded that the fit between
those contours and the predictions of the rational-design hypothesis is a good one. While IR theorists are often content to
operate at the high level of abstraction manifest in the theories
of IPDs and public goods described above or in the description
of Article 60 in terms of its broadest contours, it is the lot of the
international lawyer to be concerned with details. It is of course
comforting, from the perspective of exploring the rationaldesign hypothesis, to know that both the general concept of the
release option and the differential treatment of bilateral and
multilateral treaties are consistent with fundamental principles
of rationalist IR theory. Nonetheless, many more detailed rules
reside in the text of Article 60. What of the consistency of its
particularstandards regarding the definition of material breach
6
See supra text accompanying notes 25-26. Some have argued that an aggrieved
party may suspend provisionally its own performance of a treaty, notwithstanding the
strictures of Article 60. Eduardo Jimenez de Arechaga, International Law in the Past
Third of a Century, 159 Rec. des Cours 1, 81 (1978). However, it was also recognized
that such action is done at a party's own risk because the act of unilateral suspension
could itself constitute a breach. See also Case Concerning the Air Service Agreement of 27 March 1946 (U.S. v. Fr.), 18 R.I.A.A. 417 (Arbitral Tribunal Award of
Dec. 9, 1978) (holding that the U.S. government could deny certain rights under the
agreement pending resolution of the dispute).
66 See
supra text accompanying note 26.
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with the rational-design hypothesis, or of the fit between that
hypothesis and the additional criteria that must be met to obtain
a release option in a multilateral agreement? Are the details of
Article 60 consistent with the implications of viewing international legal cooperation as an IPD or a problem of collective action?
This Section undertakes an examination of those details in
light of rationalist IR theory. It divides its inquiry into three
subsections, each based on a particular aspect of the actual rules
of Article 60: the definition of material breach, the additional
criteria necessary to obtain release from the breach of a multilateral agreement, and the division of Article 60 into just two
categories of treaty ("bilateral" and "multilateral") keyed to the
number of parties to the breached agreement. With respect to
each of these three particular aspects of the rules of Article 60,
the analysis examines whether those rules are consistent with rationalist IR theory concerning the related concepts of the IPD,
public goods, and transaction costs. For better or worse, some
of these inquiries into the details of international law also require some extension of IR theory. The abstract notions of
"cooperation," "defection," "iteration," and so on, which characterize IR theory in its typical high-concept state, do not always
immediately provide useful guidance for evaluating the specifics
of Article 60's (or any other) rules. One may view this abstraction either as a shortcoming of existing IR theory or as an opportunity to extend the-state of the art, but, in either event, the
pursuit of the rational-design hypothesis in the context of Article 60's specific rules does require a bit of theorizing beyond
that undertaken in the previous analysis of the general structure
of Article 60 in this Part.
1. Article 60's Definition of "MaterialBreach"
The general notion of release in connection with a breach is,
as discussed above, consistent with the rationalist IR view of international cooperation as an IPD, and with the implication
thereof that the law of treaties should bless release as a retaliatory defection. Article 60 does not, however, define a material
breach as "a defection in a previous iteration." Article 60 defines a material breach as "the violation of a provision essential
40
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to the accomplishment of the object or purpose of the treaty."67
Can we discover the detail of that definition with the compass of
rationalist IR theory? This Section of the Article argues that
such a journey is something of an orienteering challenge: Article
60's definition of material breach focuses on the importance of
the breached provision to the goals of the breached treaty, while
rationalist IR theory implies that Article 60's definition of material breach should focus on the benefits and costs gained and
avoided by the breacher through its breach.
a. The IPD and MaterialBreach
The IPD involves a dichotomous choice for each party: defection or cooperation. Article 60, if we ignore the complexities of
multilateral release for the moment, involves a dichotomous
characterization of each breach: material or immaterial. There
is a temptation to match up the two pairs: Material breaches are
defections, and immaterial breaches are cooperations. This
makes sense as a starting point (although one must also remember that complete adherence to a treaty is also obviously cooperation),' and that starting point was enough to reach some of
the conclusions of the previous Section. But such an approach
does not directly assist with the question of defining what a material breach should be under the rational-design hypothesis.
Any dichotomous definition of material breach, after all, would
be consistent with this general approach so long as some
breaches gave rise to the release option.
How can we give more definition to IR theory and thereby
enable an evaluation of Article 60's definition of material
breach? The basic mechanism adopted here for bringing IR
theory a little closer to the real world is to focus upon what sort
of line one would want to draw in order to capture the difference between "cooperation" and "defection., 69 What implications of a party's actions should lead another party to characterize that action as a defection rather than as cooperation? In
67 Vienna
Convention, supra note 15, at 346.
f3 Abbott examines a coordination game with three possible choices for each
player. Abbott, IR Prospectus, supra note 3, at 371-72.
9 Cf. Setear, Iterative Perspective, supra note 3, at 193-201 (discussing correlation
between dichotomies in law of treaties and actions in prisoner's dilemma).
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Responses to Breach of a Treaty
the IPD, one can distinguish a defector from a cooperator by the
impact of one ,party's action on the benefits that the other party
receives" and, at least when the IPD springs from production of
a costly public good, by the impact of the choice on the costs
faced by the choosing party." One must, if one retains the dichotomous structure of releasing breach/not-a-releasing-breach
or defect/cooperate, draw a line somewhere. And though the
exact placement of the line may always be somewhat arbitrary,
one should at least try to draw the line with respect to the relevant dimension, i.e., benefits and costs to the parties.7 ' A defini-
tion of material breach consistent with the IPD so often deployed by practitioners of rationalist IR theory 3 should,
o See supra text accompanying notes 45-48.
7' See supra text accompanying notes 54-58; see also Jack Hirshleifer & Juan Carlos
Martinez Coll, What Strategies Can Support the Evolutionary Emergence of Cooperation?, 32 J. Conflict Resol. 367, 371 (1988) ("the COOPERATE strategy (C) is
strictly dominated by the DEFECT strategy (D)-that is, DEFECT yields a higher
payoff regardless of what the opponent does"); Jack Hirshleifer, Economic Behaviour in Adversity (1987) (making a similar argument).
7 For example, a party would want to be especially worried by whichever actions
available to the other party deprived the first party of a huge amount of benefits, and
only a little worried by whichever actions available to the other party deprived the
first party of only a small amount of benefits. See Axelrod, supra note 48, at 133-34;
Anatol Rapoport & Melvin Guyer, A Taxonomy of 2x2 Games, 11 Gen. Sys. 203
(1966) (describing possible structures of incentives in the prisoner's dilemma games).
The huge-deprivation action seems a "bigger" defection than a small-deprivation action. Studies clearly show that the payoff structure for the game affects the level of
cooperation. See generally Robert Axelrod & Robert 0. Keohane, Achieving Cooperation Under Anarchy: Strategies and Institutions, 38 World Pot. 226, 228-32 (1985)
(noting that the greater the conflict of interest, e.g., payoff structures, the greater the
likelihood of defection); Robert Jervis, Cooperation Under the Security Dilemma, 30
World Pol. 167 (1978) (discussing permutation of prisoner's dilemma most likely to
bring about cooperation). One might reason similarly with respect to costs saved
(and thus benefits garnered) by a party: A larger savings of costs seems consistent
with a larger break from the cooperative scheme of the treaty.
Alternatively, one might abandon the characterization of a situation as a discrete
and dichotomous-action IPD giving each player one of exactly two choices, and
imagine instead that the situation is a "continuous" IPD in which parties had a whole
range of actions at their disposal. Robert Jervis criticized the use of the Prisoner's
Dilemma for its insistence on restricting the number of choices each party has. Robert Jervis, Realism, Game Theory, and Cooperation, 40 World Pol. 317, 329-32
(1988). Jervis suggested that states often have many more options than cooperation
and defection and that such choices should be viewed as a continuum rather than as a
dichotomy. Id. at 329. I do not take such an alternative approach here, however.
'n This approach thus attempts to refine the IPD as a tool for examining international legal rules affecting cooperation. An alternative approach would be to examine the implications of treating international legal cooperation as something other
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therefore, focus on the degree to which the breach imposes
harms upon the victims and saves costs for the breacher compared to continuing adherence with the public goods production
scheme of the treaty.
In fact, in the world of largely independent utility evaluations
that characterize the world of rational actors who inhabit the
Axelrod tournaments, one might even be inclined to ignore the
cost savings to the breacher. The victim of the breach suffers no
direct harm from the savings of the breacher in the Axelrod
tournaments, ' and a tolerance for the affirmative gains of others
is in fact an important part of successful strategies in such tourthan an IPD. After all, the PD is an interesting game and, for many, a powerful
metaphor for interesting problems of cooperation, but the IPD is not the only game
in existence and is not necessarily the best way to describe every situation in international relations. See, e.g., James D. Morrow, Modeling the Forms of International
Cooperation: Distribution versus Information, 48 Int'l Org. 387 (1994) (examining
various non-PD games of coordination in international relations); Catherine C. Langlois & Jean-Pierre P. Langlois, Rationality in International Relations: A GameTheoretic and Empirical Study of the U.S.-China Case, 48 World Pol. 358 (1996)
(deriving class of game theoretic strategies described as "countervailing" and then
combining empirical data with assumption that U.S. and China adopted countervailing strategies to conclude that China's payoffs in U.S.-China relations were similar to
a "Deadlock" game from 1972 to 1978 but similar to a PD game from 1979 to 1988);
cf. R. Harrison Wagner, The Theory of Games and the Problem of International Cooperation, 77 Am. Pol. Sci. Rev. 330 (1983) (arguing that PD and "Stag Hunt" games
are insufficiently rich metaphors to represent security-oriented cooperation by nations). The issue of whether a game is a PD or the game of "Chicken" has generated
significant controversy. See, e.g., Michael Taylor & Hugh Ward, Chickens, Whales,
and Lumpy Goods: Alternative Models of Public-Goods Provision, 30 Pol. Stud. 350
(1982) (arguing that a variety of public-goods problems, especially involving the environment, actually present a game of Chicken rather than a PD); Zagare, supra note
50, at 36-37 (concluding, after extensive analysis, that typical situation in deterrence
is a PD, and citing some similar conclusions, while noting that "deterrence theorists
[have] almost uniformly gravitated toward the Chicken analogy"). This Article examines the tit-for-tat strategy in connection with the rules on material breach of treaties because the game-theoretical strategy and legal rules prove so closely parallel to
one another, and because no single strategy for playing the IPD has garnered nearly
the attention of the tit-for-tat strategy.
74 Axelrod recognized the importance of focusing on absolute gains rather than
relative gains: "Asking how well you are doing compared to how well the other
player is doing is not a good standard unless your goal is to destroy the other player."
Axelrod, supra note 48, at 111. Indeed, Axelrod noted that the strategy of tit-for-tat
won the tournament despite the fact that it never scored better than the other player
in any game: "TIT FOR TAT won the tournament, not by beating the other player,
but by eliciting behavior from the other player which allowed both to do well. TIT
FOR TAT was so consistent at eliciting mutually rewarding outcomes that it attained
a higher overall score than any other strategy." Id. at 112.
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Responses to Breach of a Treaty
naments. Nonetheless, there is some danger in ignoring cost
savings by the breacher in terms of larger issues of IR theory.
The best-established branch of rationalist IR theory (realism)
assumes that nations measure their satisfaction with a particular
outcome relative to the effect of that outcome on other nations." This relative-gains view implies that savings by a longterm competitor-and long-term competition is the posture of
one nation to another in the neorealist view of how nations calculate their utility-are harmful to other nations, because the
breaching nation will be able to use the saved resources for
some other purpose that benefits the breacher. There is significant controversy in IR theory about the relative-gains assumption and its implications,7 6 and this Article could hardly hope to
resolve that controversy. Instead, the Article simply takes the
more inclusive view and evaluates the consistency of Article 60's
definition of material breach against its impact both upon the
direct reduction in absolute benefits imposed upon the victim by
the breach and upon the savings in costs accruing directly to the
breacher.
The characterization of a breach as "material" should therefore be correlated with the degree to which the (breaching) behavior in fact deprives the victim of the benefits of the agreement or saves the breaching party costs. With respect to these
criteria, Article 60 deserves a mixture of praise and criticism.
Article 60 requires that a breached provision be "essential to
the accomplishment of the object or purpose of the treaty" if a
breach of that provision is to be material." This requirement
imposes at least the need to show some plausible correlation between the deprivation of benefits suffered by the victim of a
breach and the likelihood that the victim will be released from
its obligation to continue cooperating in the production of the
75 For example, according to Joseph M. Grieco, states are positional, not atomistic,
in character, and are therefore concerned about relative gains. Joseph M. Grieco,
Anarchy and the Limits of Cooperation: A Realist Critique of the Newest Liberal
Institutionalism, 42 Int'l Org. 485,499 (1988).
76 See, e.g., Michael Mastanduno, Do Relative Gains Matter? America's Response
to Japanese Industrial Policy, 16 Int'l Sec. 73 (1991); Robert Powell, Absolute and
Relative Gains in International Relations Theory, 85 Am. Pol. Sci. Rev. 1303 (1991);
Duncan Snidal, Relative Gains and the Pattern of International Cooperation, 85 Am.
Pol. Sci. Rev. 701 (1991).
" Vienna Convention, supra note 15, art. 60(3)(b), at 346.
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international public good at issue in the breached treaty. The
"object or purpose of the treaty," after all, is presumably the
area with respect to which the gains of cooperation are greatest. 8 Parties would be irrational to focus their goals in a particular treaty on activities promising little gain. Parties may not
always be able to reach agreement on the most beneficial endproduct of successful cooperation, of course-an agreement to
banish war entirely, for example, promises huge benefits, but
nations (perhaps sobered by the failure of the Kellogg-Briand
Pact)79 may currently feel that a treaty could not actually effectuate that promise in light of other features of the international
system. The "object or purpose" of a given treaty nonetheless
seems plausibly to be the kind of cooperation that promises the
best results from that treaty. Breaching such a provision, as
compared to breaching a provision not essential to accomplish-
ment of the treaty's object or purpose, would therefore seem
more likely to deprive the victim of the benefits of cooperation,
and thus should be more likely to excuse the victim from an ob-
7' For example, Kirgis examined whether the United States breached the 1981 Algiers Accords:
The Algiers accords provide, inter alia, for the settlement of claims of
nationals of one party against the other party (with some exceptions, such as
claims of the hostages) by submission to the Iran-United States Claims
Tribunal; the return to Iran of assets held by U.S. banks and their branches; the
funding of a $1 billion security account for payment of U.S. claims against Iran,
with a' requirement that Iran maintain a $500 million balance in it; the
nullification of U.S. trade sanctions against Iran; the eventual return of the
Shah's assets to Iran; the withdrawal of U.S. claims against Iran from the
International Court of Justice; and the termination of all legal proceedings in
the United States involving claims of U.S. nationals against Iran.
In 1981, shortly after the Algiers accords entered into force, President
Reagan "suspended" all U.S. claims in U.S. courts insofar as they could be
presented to the Iran-U.S. Claims Tribunal. This was a breach of the provision
in the Algiers accords requiring termination, not just suspension, of such
claims.
Kirgis, supra note 21, at 551 (footnote omitted); see also id. at 571-73 (describing
"suspension" of all U.S. claims as a "nonmaterial breach" of Algiers accords).
71 The Kellogg-Briand Pact was signed in 1928 and provided for the renunciation of
war as an instrument of national policy. Treaty Providing for the Renunciation of
War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57.
In practice, the Pact did little to prevent international conflict. See Anthony Clayk
Arend & Robert J. Beck, International Law and the Use of Force 22-24 (1993).
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Responses to Breach of a Treaty
ligation to continue the cooperative behavior specified in the
breached treaty.'
Another aspect of the rule applicable in the bilateral case
does not, however, sufficiently seek to match the dangers of exploitation with the likelihood of release from the breached
treaty. The Vienna Convention's definition of a material breach
may differentiate among breached provisions according to
whether such provisions are essential to the purpose of the
treaty or not, but that definition does not differentiate among
magnitudes of breach." An infinitesimal breach of an essential
provision in a bilateral treaty allows the victim to abandon the
entirety of its obligations, just as an unconstrained rule of
"perfect tender" in Anglo-American contract law would allow
the buyer to abandon the contract upon discovery of the smallest breach of the seller's warranties. An infinitesimal breach is
very likely, however, to represent only an infinitesimal reduction in the aggregate benefits of cooperation, and thus to deprive the victim of only an infinitesimal amount of benefits even
if that victim continues to cooperate with the treaty's endeavor
to produce an international public good. In such a case, the victim should not be excused. Article 60's definition of material
breach, in contrast, allows the victim to abandon a productive
treaty entirely, and thus to reduce to zero its contribution to the
production of the public good, even though the breacher's behavior does not significantly reduce the victim's benefits.
The degree to which the cost savings from a breach correlate
with the essentialness of the breached provision to the object or
purpose of the treaty seems even less direct than the correlation
between deprivation of benefits to the victim and that essentiality. After all, a rational party certainly should not mind entering
91 In the earlier example of essential and non-essential provisions, see supra note 22
and accompanying text, a breach of Article 6 of the Basel Convention would clearly
bring significant advantages to the breaching state. Article 6 concerns the transboundary movement of hazardous waste between parties. It is an essential provision
because it regulates the underlying subject matter of the treaty. It imposes significant
obligations on parties. Thus, a breaching state would gain by not complying with its
provisions. In contrast, a violation of Article 14 would not bring about significant advantages because it requires the parties only to consider the establishment of a revolving fund to finance emergency responses to accidents arising from transboundary
movements.
81 See supra text accompanying notes 18-22.
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an agreement with a purpose that yields cooperation of great
benefit at little cost. In fact, such an agreement is just what a rational party should want-a great surplus of benefits over costs.
One might therefore argue that the focus of Article 60's definition of material breach on the essentiality of the breached provision is unlikely to produce a close correlation between the costs
saved by a breacher and the likely materiality of the breach. In
many cases, however, one must imagine that benefits and costs
will flow from the fulfillment of the same obligations. Each nation will pay a price for its own fulfillment of the obligation and
receive a benefit from the fulfillment of that obligation by others. That is the nature of a public good, after all.
In summary, then, the definition of "material breach" in Article 60 appears to be moderately correlated with deprivations of
benefits, and only loosely correlated with cost savings, flowing
from a breach. Thus, this definition seems at best to represent
only a modest correlation between reality and the rational-design hypothesis.
b. Transaction-CostAnalysis and MaterialBreach
This Article has just concluded that the details of Article 60's
definition of material breach display some, but hardly overwhelming, consistency with the extension of IPD-oriented, rationalist IR theory developed just above. Such a conclusion
need not be the final word on the rational-design hypothesis,
however. The rational-design hypothesis also allows for the
possibility that rationalist phenomena besides the structure of
the IPD will affect institutional design.
As described above, public-goods theory rests on the notion
that "transaction costs"-the costs of making and monitoring
agreements-are an important part of the problem of collective
action, and thus of the public goods problem, and thus of an
IPD generated by a public goods problem.' In the discussion
above (and in much work on collective-action problems), the
analysis of transaction costs focuses on the (assumedly positive)
relationship between the number of parties participating in production of the public good on the one hand and per-party trans82
See supra text accompanying notes 56-60.
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action costs on the other. One may, however, also postulate
(and then analyze) a relationship between the level of per-party
transaction costs and some other variable. This portion of the
Article focuses on per-party transaction costs as a function of
the political-legal system under scrutiny, with an emphasis on
the comparison between the U.S. civil litigation and dispute
resolution in the international legal system. This Article argues
that per-party transaction costs are higher in the international
political system, especially with respect to factual determinations, and that Article 60's definition of material breach is consistent with a rational recognition of that high level of transaction costs.
i. Transaction Costs in the InternationalPoliticalSystem
Article 60 of the Vienna Convention, like all rules of international law, is embedded not only within the larger context of the
international legal system as a whole, but is also in turn embedded within the international political system. These systems
present a number of significant barriers to the making and
monitoring of international agreements in comparison, say, to
the making and monitoring of contractual agreements by two
individuals in the United States. The rationalist IR theory discussed above often treats the nation-state as a unified actor, but
of course the officials of the nation-state frequently comprise a
contentious and diversified lot. The influence of the general
polity upon official deliberations can also lead to costs and
complexities in the making and monitoring of international
agreementsY The transaction costs of reaching agreement
within a nation-state are therefore significant, but of course an
international agreement also involves reaching agreements between nations. Officials of different nation-states frequently
speak different languages, or interpret translated language
83
See supra text accompanying notes 61-63.
14Cf. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of TwoLevel Games, 42 Int'l Org. 427 (1988) (analyzing the implications of domestic politics
for international politics). See generally Graham T. Allison, Essence of Decision:
Explaining the Cuban Missile Crisis (1971) (discussing influence of organizational
and bureaucratic politics on diplomacy); Irving L. Janis, Groupthink: Psychological
Studies of Policy Decisions and Fiascoes (2d ed. 1982) (examining foreign policy
"fiascoes" to identify sources and symptoms of "groupthink").
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through a lens of very different cultural backgrounds. The uses
and folkways of negotiations can differ significantly from nation
to nation, leading to higher costs in reaching an actual consensus." In addition, nations have (especially in recent decades)
used treaties to pursue solutions to problems of great technical
complexity and rapid technological change.86 All of these factors lead to higher transaction costs-the costs of making and
monitoring agreements.'
One reflection of these high transaction costs (or perhaps
even one of the causes) is a system of law-oriented international
dispute resolution that looks rather underdeveloped in comparison to the system of law-oriented domestic dispute resolution.
There are no international jails or sheriffs; there are few international courts of compulsory jurisdiction; there are only the
rudiments of an international legislature or an international
military force. The costs of interpreting rules and resolving disputes in the international legal system are therefore much
higher than the same kind of costs in, say, United States civil legal system. Litigants in U.S. courts frequently (and justifiably)
complain about the costs and delays of bringing a civil suit to
trial. For their time and money, however, such litigants receive
access to a highly developed, hierarchical system of dispute
resolution that promises a high probability of leading to authoritative factual determinations and a judgment that will actually
See generally James K. Sebenius, Negotiating the Law of the Sea (1984)
(discussing the Law of the Sea Convention in terms of complex bargaining and negotiation); Glenn H. Snyder & Paul Diesing, Conflict Among Nations: Bargaining, Decision Making, and System Structure in International Crises (1977) (analyzing crisis
situations through models of bargaining).
For example, the Vienna Convention for the Protection of the Ozone Layer,
done Mar. 22, 1985, 26 I.L.M. 1516 (1987), and the subsequent Montreal Protocol on
Substances That Deplete the Ozone Layer, done Sept. 16,1987, 26 I.L.M. 1541 (1987)
[hereinafter Montreal Protocol], have developed a highly complex regime for the
regulation of ozone depleting substances. See, e.g., Richard Elliot Benedick, Ozone
Diplomacy: New Directions in Safeguarding the Planet (1991).
17The transaction-costs literature is very broad. For some of the highlights, see
R.H. Coase, The Nature of the Firm, 4 Economica 386 (1937); R.H. Coase, The
Problem of Social Cost, 3 J.L. & Econ. 1 (1960); Oliver E. Williamson, Markets and
Hierarchies: Analysis and Antitrust Implications (1975); Benjamin Klein et al., Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, 21
J.L. & Econ. 297 (1978). For an application to IR, see Beth V. Yarbrough & Robert
M. Yarbrough, International Institutions and the New Economics of Organization, 44
Int'l Org. 235 (1990).
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be enforced. How much, in contrast, would it cost the United
States government to bring a suit over the breach of a treaty
against another national government and expect to receive access to a highly developed, hierarchical system of international
dispute resolution with a high probability of leading to an enforced judgment? The costs are essentially infinite (in the short
term): No such opportunity currently exists at any price. Certainly, at least, one could characterize transaction costs in the international legal system as relatively high in comparison to
many other legal systems.
Indeed, one can see some of the difficulties involved in international legal rule-making in the very doctrines under analysis
in this Article: The Vienna Convention was the first authoritative codification of a body of law that had existed in nascent
form for centuries, and transaction costs with respect to the law
of state responsibility have been so high that centuries of customary-law bantering and decades of actual drafting efforts
have yet to produce a treaty for signature!'
Despite the difficulties involved in formulating legal rules in
the international system, it is probably factual determinations
that present the highest relative transaction cost barriers in the
international legal system. In civil suits in the United States, for
example, rules on discovery give litigants a great deal of access
to information possessed by one another. Many civil suits involve events to which there are witnesses uniquely qualified to
recount those events, and persuading those witnesses to appear
in civil court is not typically a challenge once one has located the
relevant individuals. In the international legal system, in contrast, the nation-state is essentially more powerful than the court
system. That nation is often the only holder of relevant factual
information. If other nations possess the relevant information
0 Formal efforts to codify the law of treaties were initiated by the International
Law Commission at its first session in 1949. These efforts led first to the Draft Convention on the Law of Treaties and subsequently to the Vienna Convention on the
Law of Treaties. See Sir Ian Sinclair, The Vienna Convention on the Law of Treaties
1-3 (2d ed. 1984).
Similarly, formal efforts to codify the law of state responsibility began in 1949, at
the first session of the International Law Commission. While significant work has
been completed, a Convention on State Responsibility has yet to be signed. See
United Nations Codification of State Responsibility, at vii (Marina Spinedi & Bruno
Simma eds., 1987).
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as a result of intelligence-gathering, the question arises as to just
which of two potentially quite biased sources one is to believe.
A loose community of individuals arguably lacking in nationspecific biases exists to interpret legal principles in light of particular facts, but no such community exists to determine the
facts at issue in a particular case. As a result, accurate factual
information can be especially difficult to obtain in the international legal system.
ii. Transaction Costs and Article 60's Definition of Material
Breach
Viewed against the backdrop of the high transaction costs in
the international legal system (especially with respect to factual
determinations), the difference between the predictions of rationalist IR theory focused on the IPD and Article 60's actual
definition of material breach seems a little less jarring. Rational
designers of rules should attempt to economize on the costs of
enforcing those rules instead of ruthlessly propagating rules that
appear to be consonant with rationalist tenets as more narrowly
interpreted. In a system (i.e., the international political-legal
system) where factual determinations are very costly to obtain,
there is something to be said for a rule that does not require a
great deal of inquiry into the particulars of each case presented
under that rule.
Article 60's focus upon the importance of the breached provision to the treaty's object or purpose, rather than upon the impact of the breach on the benefits and costs accruing to the parties as a result, is a rule that economizes on the need to make
costly factual determinations. As soon as one can identify which
provision is involved in the breach, the inquiry shifts to the role
of that provision in the treaty scheme. An inquiry into the
treaty scheme involves inferences about the treaty's object or
purpose, and about what mechanisms are necessary to accomplish that purpose,89 rather than about the particular factual con89 In examining U.S. compliance with the Algiers Accords, Kirgis referred to the
work of the International Law Commission for guidance.
According to the International Law Commission's ...commentary to the draft
that became Article 60, such essential provisions are not limited to those
directly touching the central purposes of the treaty; "other provisions
considered by a party to be essential to the effective execution of the treaty
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51
text of the breach. Parties participating in the dispute about the
role of the breached provision in the treaty scheme can base
their arguments on the already-existing text of the treaty and on
the travauxpreparatoiresrelating thereto,' rather than upon factually intensive arguments about events occurring in connection
may have been very material in inducing it to enter into the treaty at all, even
[though] these provisions may be of an ancillary character." Surely the
provision in the Algiers accords requiring termination of the claims in U.S.
courts would meet this test.
Taken literally, Article 60(3)(b) says that any violation of a provision
essential to the accomplishment of the object or purpose of a treaty is a
material breach. Does this mean that the U.S. decision to suspend rather than
terminate U.S. claims would have authorized Iran to terminate the Algiers
accords, and thus to decline to arbitrate or to pay U.S. claims covered by the
accords? If the accords are properly considered as one treaty, and if Article 60
is taken at face value, the answer would be yes.
Kirgis, supra note 21, at 551-52 (footnotes omitted).
1 Articles 31 and 32 of the Vienna Convention concern the interpretation of treaties. Article 31 provides:
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a) Any agreement relating to the treaty which was made between all the
parties in connexion with the conclusion of the treaty;
(b) Any instrument which was made by one or more parties in connexion
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) Any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation;
(c) Any relevant rules of international law applicable in the relations
between the parties.
4. A special meaning shall be given to a term if it is established that the
parties so intended.
Vienna Convention, supra note 15, at 340. Article 32 provides:
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order
to confirm the meaning resulting from the application of article 31 [concerning
the general rule of interpretation], or to determine the meaning when the
interpretation according to article 31:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable.
Id. For a general discussion of the process of treaty interpretation, see T.O. Elias,
The Modem Law of Treaties 71-87 (1974); Sinclair, supra note 88, at 114-54.
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with the breach itself. No inquiry into the exact costs and benefits accruing to each party to the agreement is needed. In cases
where the breached provision is clearly essential to the accomplishment of the object or purpose of the treaty, as when a
treaty has just a few substantive provisions, the determination
will be quite easy. So long as these (unnecessary) factual inquiries would be more expensive to make than the legally oriented inquiries involved in judging whether a treaty provision is
essential to the accomplishment of the object or purpose of the
treaty, then Article 60's focus on the importance of the
breached provision to the treaty scheme (rather than upon the
impact of the breach itself) is consistent with rationalist IR theory-even if that focus initially appears inconsistent with the
emphasis on deprivations of benefit and cost savings that one
might otherwise see as the proper yardstick for defining material breach.
Note also that Article 60's rule is consistent with a sensitivity
to the transaction costs that accrue in administering a treaty
over time, not just with respect to a single dispute. Once nations
agree that a particular provision is essential to the object or
purpose of the treaty containing that provision, then any future
breach of that provision is automatically material. A definition
of materiality based on the benefits or costs accruing from the
particular breach at issue, in contrast, obviously requires a costly
determination of those effects for every dispute that arises under the provision.9
2. The Additional CriteriaApplicable to Releasefrom a
MultilateralTreaty
For multilateral agreements, the materiality of breach is a
necessary, but not a sufficient, condition to give the victim of a
breach the legal option to release itself from its treaty obligations.' A party seeking release from its multilateral obligations
must also meet (any) one of three additional criteria.93 An examination of these additional release criteria in light of the ex91 See Chinkin, supra note 26, at 403-16 (providing several examples of nonper-
formance of international agreements).
91 See supra text accompanying note 23.
93 See id.
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tension of rationalist IR theory concerning the IPD developed
just above, as well as in light of criteria from established IR theory closely related to public-goods theory, is the topic of this
Section of the Article. This Section proceeds through each of
the additional multilateral-release tests in turn and draws upon
the relevant IR theory as necessary, rather than attempting to
structure the analysis by the exact variant of IR theory under
consideration.
a. The Unanimous Victims Test
The first additional, multilateral release criterion is set forth
in Article 60(2)(a) of the Vienna Convention: All non-breaching
parties may agree to suspend or terminate a breached obligation
by their unanimous agreement." This condition is sensible for
several reasons. First, the "unanimous victims" test is consistent
with the rest of the law of treaties. When all parties to an unbreached treaty agree that such a treaty is inoperative with respect to some or all of the parties thereto, the Vienna Convention gives effect to that unanimous decision to negate otherwisebinding treaty obligations." The rule of Article 60(2)(a) in effect simply modifies the rule governing unbreached treaties so
that, in the case of a (materially) breached treaty, all the nonbreachingparties may together render the treaty inoperative.96
Second, the revocation of the breacher's right to vote on suspension or termination of the treaty also seems a useful (if mild)
disincentive to breach-and not an overly hasty revocation, either, given that the breach must at least be material for that
revocation of the breacher's rights to occur.
See id.
15 Article 54 of the Vienna Convention provides: "The termination of a treaty or
the withdrawal of a party may take place: (a) In conformity with the provisions of the
treaty; or (b) At any time by consent of all the parties after consultation with the
other contracting States." Vienna Convention, supra note 15, at 344-45. Similarly,
Article 57(b) provides that the operation of a treaty may be suspended at any time by
consent of all the parties. Id. at 345.
9 Article 60(2)(a) provides that a material breach of a multilateral treaty by one of
the parties entitles: "The other partiesby unanimous agreement to suspend the opera-
tion of the treaty in whole or in part or to terminate it either: (i) In the relations between themselves and the defaulting State, or (ii) As between all the parties." Vienna Convention, supra note 15, at 346 (emphasis added).
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Third, the unanimous victims test also harmonizes the treatment of the breach of bilateral and multilateral agreements in
certain circumstances. In a bilateral breach, a material breach
automatically gives the victim a release option. In a two-party
breach, the victim is the only non-breaching party-and thus the
victim is "all" of the non-breaching parties left in the arrangement. In a multilateral breach, materiality of breach is not by
itself sufficient to give rise to a release option, but the unanimous victims test does give all of the non-breaching parties left
in the arrangement the ability to grant themselves a-release option.
For the law of treaties to operate otherwise would not only be
somewhat logically inconsistent but also, in the view of rationalist IR theory, would be dangerous. To retain a materially
breaching party in the set of those whose unanimous consent is
necessary to suspend or terminate the breached treaty's operation would allow a materially breaching party to block a decision by all the non-breaching parties to suspend or terminate
the treaty. This seems an excessive degree of power to give a
nation that has acted inconsistently with the object or purpose
of the agreement at issue.
Indeed, in some circumstances, the inclusion of the breaching
party in the set of those who must unanimously approve suspension or termination would give a party an affirmative incentive
to breach. In circumstances where continued adherence to the
treaty by other parties would still provide some benefits to a
breaching party even after its breach-as is clearly true with respect to treaties governing the provision of international public
goods-a party could breach and then veto the termination of
the treaty. As a result, it would reap continuing benefits from
the treaty without having to incur any costs of compliance. Article 60(2)(a) sensibly guards against such an occurrence.
b. The Special Effects Test
With respect to the other two additional, alternative grounds
for releasing victims of a breach from their multilateral obligations-the "special effects" test and the "universal radical effects" test-there are significant grounds on which to criticize
Article 60 of the Vienna Convention. The "special effects" test,
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set forth in Article 60(2)(b), allows release of a non-breaching
party from its treaty obligations "in the relations between itself
and the defaulting State" when the breach "specially affect[s]"
the non-breaching party.97 There are two main difficulties with
the "special effects" test: one of general applicability treated
immediately below, and one (concerning a special class of treaty
obligations that this Article terms "singular promises") that is
deferred until the final portion of my treatment of the additional
multilateral-release criteria.98
If the action of the breaching party does not specially affect a
particular victim state, Article 60(2)(b) does not release a victim
nation from its obligations.' Such a rule means that parties will
frequently be held to a treaty even when the breaching party's
action sharply reduces the benefits received by the victim(s) of
the breach. Even a very substantial exploitation by the breaching party of the other parties to the treaty will continue to bind
all the victim states-so long as the distribution of the diminished benefits is uniform enough not to "specially" affect a
state.' °° An outcome of substantial deprivation of benefits without release, however, is inconsistent with the extension of IR
theory concerning the IPD developed above in connection with
the definition of material breach. 1
Nonetheless, there is a possible justification for a standard
that can be derived in straightforward fashion from rationalist
IR theory that is concerned with public goods. In a multilateral
breach, there is more than one victim. A particular victim exercising a release option affects the interests not only of the
breaching party, but also of all those who might wish to continue to adhere to the treaty despite the breach. A victim exercising a release option, after all, reduces the benefits to remain97 See
supra text accompanying notes 17,23.
98See infra text accompanying notes 125-126.
Article 60(2)(b) provides that a material breach of a multilateral treaty by one of
the parties entitles: "A party specially affected by the breach to invoke it as a ground
for suspending the operation of the treaty in whole or in part in the relations between
itself and the defaulting State. . . ." Vienna Convention, supra note 15, at 346
(emphasis added).
NOSee supra note 19. Under Article 60(3), however, (examined below) a substantial but uniform diminution of benefits will create a release option if it is so substantial as to be a "radical" diminution of benefits.
M'See supra text accompanying notes 68-80.
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ing adherents in a fashion quite similar to the reduction of benefits that results from the initiating breach; a nation dropping out
of the agreement affects the nations still complying whether the
drop-out nation is the initial breacher or a subsequently released nation. In the language of economists, release creates a
"negative externality"-a cost that one party (i.e., the released
party) imposes upon others (i.e., those continuing to adhere) by
its actions, rather than exclusively upon itself."2 Parties left to
their own devices will, from the point of view of the group as a
whole, undertake an excessively high level of activities causing
negative externalities. 3 The group will find it in its aggregate
interest to impose some sort of penalty upon those contemplating actions involving a negative externality-ideally, a penalty
equal in its impact on the decisionmaker to the cost of the decision upon the rest of the group.' The special effects test effec-
tively sets such a penalty for committing the action giving rise to
the externality-a penalty equal to whatever the price of drop-
ping out of the underlying treaty in violation of the Vienna
Convention proves to be-because the special effects test pro-
hibits release in the absence of a special effect.
The special effects exception is in one sense a good rule under
the criterion, discussed above, of attempting to equate loss of
"IAbbott notes that the standard illustration of a negative externality is the pollution emitted by a factory.
The firm that owns the factory need not consider the costs borne by its
neighbors when it decides at what level to operate. It is therefore likely to
engage in more of the externality-producing activity than is socially optimal.
Beautification of the factory grounds, on the other hand, benefits the
neighbors, creating a positive externality. Since the owner captures only part
of the total social benefit, it is likely to invest in this activity at a less than
optimal level.
Abbott, IR Prospectus, supra note 3, at 389 (footnotes omitted). For a general discussion on externalities, see William H. Riker & Peter C. Ordeshook, An Introduction to Positive Political Theory 256-59 (1973); Hal R. Varian, Intermediate Microeconomics 537-57 (2d ed. 1990).
10 See generally John A.C. Conybeare, International Organization and the Theory
of Property Rights, 34 Int'l Org. 307 (1980) (discussing "property rights" approach to
addressing negative externalities).
114 For discussions on taxing or regulating activities that produce negative externalities, see Coase, The Problem of Social Cost, supra note 87, at 1-2; Carl J. Dahlman,
The Problem of Externality, 22 J.L. & Econ. 141, 156-57 (1979); Candice Stevens, Interpreting the Polluter Pays Principle in the Trade and Environment Context, 27
Cornell Int'l L.J.577 (1994).
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benefits with likelihood of release. 5 The special effects test
overrides Article 60's general presumption against release from
multilateral obligations, inferentially stemming from a concern
with externalities, when a failure to allow release would especially harm a particular party. A great deal of harm (to one
party) therefore results in a release option for that party, while a
lesser degree of harm (to those parties not specially affected)
does not result in a release option for them. The differences in
harm involve different parties suffering from the same breach
rather than different harms to the same party from different
breaches, but the principle should still be the same: A large deprivation of benefits should give rise to a release option, while a
small deprivation of benefits should not. Of course, as discussed
above, the "specialness" of the harm is not necessarily correlated directly with the degree of harm measured in an absolute
sense because the harm must simply be special, not substantial.
Nonetheless, the "specialness" of the harm is at least correlated
with the degree of harm as measured relative to other victims.
One might also wonder if the transaction-cost analysis that
helped reconcile Article 60's definition of material breach with
the rational-design hypothesis" might mitigate some of the inconsistency between the special effects test and the rationaldesign hypothesis respecting the possibility of a substantial but
evenly distributed deprivation of treaty benefits. With respect
to Article 60's definition of material breach, this Article argued
above that the dissonance of Article 60's rule with the implications of the rationalist IR theory derived from the IPD is muted
by the consonance of that rule with a reasonable desire to avoid
high transaction costs in administering the rule. 7 Article 60's
definition of material breach avoids factually intensive determinations and is thus useful even though the definition itself does
not correlate perfectly with the deprivation-of-benefit test suggested by rationalist IR theory.
Unfortunately, the argument that was so helpful in the context of material breach does not translate well into support for
Article 60's special effects test. While Article 60's definition of
115See supra text accompanying notes 99-101.
1' See supra text accompanying notes 89-91.
17
See supra text accompanying notes 68-91.
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material breach obviates the need for factual determinations
related to the specific breach at issue, the special effects test requires just such a determination. One must, in each case, make
a factual determination about whether the effects of a particular
breach are special, although one avoids determining whether
the breached provision is essential to the treaty scheme. The
breach-specific special effects test is thus not easily justifiable as
a rational response to the high transaction costs inherent in the
international legal system. Note also that to the degree that a
characterization of an impact as "special" means that a party
seeking release can demonstrate a "special" effect on itself only
by examining the effects of the breach upon others, the inquiry
must involve factual determinations of the impact of the breach
not only on the party seeking release but also on other parties.
If a nation could only show a special effect on itself by showing
that a majority of nations suffered less from the breach than that
nation, for example, then the inquiry would require a determination of the impact of the breach on at least half of the parties
to the treaty. To the extent that the special effects test requires
factual determinations about a broad range of parties, the special effects test is thus even less justifiable on transaction-cost
grounds then in the absence of a transaction-cost analysis.
c. The UniversalRadicalEffects Test
The "universal radical effects" test, embodied in Article
60(2)(c) of the Vienna Convention, is the third alternative, additional condition associated with multilateral treaties."m Under
this rule, the victim of a breach must not only show materiality,
as in the bilateral case, but must also show a radicalimpact from
the breach on every party to the treaty."° This test operates in
conjunction with the special effects test of Article 60(2)(b) to
shape the availability of release whenever all non-breaching
parties fail to agree to grant a release option: A breach must either specially affect one victim, or radically affect all victims, if
release is to occur.
As discussed at various points above, the standard for granting a release option with respect to breaches of a multilateral
108See supra text accompanying note 23.
109See id.
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agreement is, and according to rationalist IR theory, should be,
more stringent than the standard for granting a release option
with respect to breaches of a bilateral agreement.11 The universal radical effects test is certainly an example of a profound difference in the likelihood of granting release from multilateral
rather than bilateral treaties. For a non-breaching party to a
bilateral treaty, a tiny deviation from a single essential provision
of the treaty leads to a judgment of materiality and thus release
of the non-breaching party, even if that breach has only a tiny
impact upon its victim. "' The party to a multilateral treaty, in
contrast, is released under the universal radical effects test only
if the material breach in question has a radicalimpact upon that
party-indeed, only if the breach has a radical impact upon
every other party to the treaty.'
By requiring a "radical" impact on all remaining parties, the
universal radical effects test obviously exposes signatories to a
significant possibility of exploitation by a breaching nation. So
long as the breach does not have a radical impact on every victim, a breacher can release itself from the strictures of a treaty
through its breach, but continue to garner the benefits of the
treaty. The victims of the breach remain bound to their obligations (including, it should be noted, their obligations to the
breaching party).11
Nonetheless, the universal radical effects test does at least
impose a greater correlation between exploitative diminution of
benefit and the likelihood of release than does Article 60(2)(b).
A "radical" effect presumably diminishes the benefits of exchange significantly, while a less-than-radical effect results in
some less significant diminution of benefits. A test of "special"
,, See supra text accompanying notes 23-26 and 56-66.
,' See supra text accompanying notes 17-22.
m Article 60(2)(c) of the Vienna Convention allows a state to invoke a material
breach of a multilateral treaty:
as a ground for suspending the operation of the treaty in whole or in part with
respect to itself if the treaty is of such a character that a material breach of its
provisions by one party radically changes the position of every party with
respect to the further performance of its obligations under the treaty.
Vienna Convention, supra note 15, at 346 (emphasis added).
"1The analysis of the sentence in the text assumes that, of course, the special effects test does not operate in the situation under consideration to grant a release option.
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effects, in contrast, does not tie the likelihood of release to the
deprivation of benefits at all.
As to the issue of whether a universal "radical effect" standard is better than a universal "substantial effect" standard, one
is hard-pressed to make such fine distinctions on the basis of rationalist IR theory, even as extended above. As to the requirement of a "radical effect" on every party before any party can
obtain a release option under this test, there remains the possibility of a decoupling between the deprivation of benefits to the
victims and the likelihood of their obtaining a release option. If
every victim state except one is completely deprived of the
benefits of exchange by the breach, then all victim states must
continue to adhere to the entirety of the treaty despite such exploitation, so long as the exceptional state is not radically affected by the breach. A nearly complete deprivation of the aggregate benefits of cooperation-complete deprivation for all
states but one, and a deprivation just short of "radical" for that
one state-could therefore occur without resulting in the excuse
of a single victim state. Such a disparity between lost benefits
and the probability that a release option exists seems quite excessive.
Of course, one might employ the special effects test to rescue
the parties in such a situation. If demonstrating a "special effect" requires only that a particular state show that it has been
especially harmed compared to one other state, then a special
effect is easy to demonstrate, and thus the need for using the
universal radical effects test will be infrequent. This would
lessen the unattractiveness of the rule on transaction-cost
grounds. Only a rare breach, after all, seems likely to affect exactly every party to the treaty in exactly the same way. This interpretation of "special" would make the special effects test an
"exception" that swallows the general rule that release from
multilateral obligations should be somewhat difficult given the
negative externalities imposed upon other parties by a party's
exercise of the release option.
If demonstrating a "special" effect requires a state to show
that it is the only state suffering a greater impact from a given
breach, in contrast, such a demonstration will presumably be
quite difficult. Rationalist IR theory, however, does not suggest
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an immediate way out of this dilemma. As long as the criteria
additionally applicable to multilateral agreements focus only on
"effects upon the party seeking release," rather than including an
analysis of the effects of granting a release option to one party
upon remainingadherents to the treaty, there will always be this
sort of difficulty in determining the proper standard for a
"special" (or indeed any other kind of) effect.
As with the special effects test, a transaction-cost analysis
does not improve the consistency of the actual rules of Article
60 with the rational-design hypothesis. Like the special effects
test, the universal radical effects test requires particularized inquiry into the effects of each breach, not a legalistic inquiry into
the textual structure of the treaty scheme. Furthermore, the
universal radical effects test clearly requires an inquiry into the
effect of the breach on every party to the treaty, even if only one
victim of the breach actually seeks a release option."' The universal radical effects test therefore actually implies very high
transaction costs in its administration because an assertion of
the universal radical effects rule by even one state with respect
to any given breach requires a factually intensive inquiry into
the impact of the relevant breach upon all states. This is hardly
a rule designed to minimize the costs of administering the relevant treaty.
d. "Singular"Promises
This portion of the Article articulates the idea of a "singular
promise" and then shows the difficulties that this important and
increasingly popular kind of treaty obligation creates in the application of the special effects test of Article 60. "Singular
promises" are associated with the provision of international
public goods, but the argument of this Section of the Article is
not otherwise directly connected to rationalist IR theory.
i. The SingularPromise
There are additional difficulties with the special effects test
when the obligations at issue in the treaty focus upon what this
Article terms "singular promises." A "singular promise" is an
1,4
See supra notes 109-113.
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obligation discharged to all other treaty parties by undertaking
exactly one activity.'15 For example, the United States might enter into a treaty in which it promises to reduce its production of
ozone-depleting substances to a certain level.116 This is a
"singular promise." Contrast this promise with a treaty in which
the United States agrees to allow all diplomatic personnel of the
parties to the treaty to travel freely throughout the United
States.117 This is not a singular promise, as defined here, because
one can in fact distinguish many activities at issue, each with a
different national obligee-allowing Russian diplomatic personnel to travel freely, French diplomatic personnel to travel freely,
Nigerian diplomatic personnel to travel freely, and so forth.
The promise rendered to each nation takes the same form-
"your diplomatic personnel may travel freely"-but one can still
distinguish among various promises, each made to a different
nation. In the example involving ozone-depleting substances, in
contrast, there is no way to distinguish fulfillment of the promise
made to Russia with the promise made to France or Nigeria or
15 One might compare singular promises to erga omnes promises: "Generally, only
the state that is the victim of a breach of an international obligation has standing to
make a formal claim or to resort to third-party settlement procedures. Some international obligations, however, are erga omnes (to all states), and as to these any state
may pursue a remedy." Restatement (Third), supra note 21, pt. IX, intro. note,
at 339.
Chinkin noted that:
A party especially injured by the breach of a multilateral agreement (such as
the United States in connection with Iran's violations of the Vienna
Convention on Diplomatic Relations) may invoke the breach as a ground for
suspension, but not for termination. This practice acknowledges that a
multilateral agreement creates several bilateral arrangements, and a particular
breach really concerns only two of them.
Chinkin, supra note 26, at 430-31 (footnotes omitted).
116 For example, Article 2(1) of the Montreal Protocol provides that:
[e]ach Party shall ensure that for the twelve-month period commencing on the
first day of the seventh month following the date of the entry into force of this
Protocol, and in each twelve-month period thereafter, its calculated level of
consumption of the controlled substances in Group I of Annex A does not
exceed its calculated level of consumption in 1986.
Montreal Protocol, supra note 86, at 1552.
17 For an example of an actual treaty along these lines, see Vienna Convention on
Diplomatic Relations, done April 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 (entered
into force Apr. 24, 1964). Article 26 provides that "[s]ubject to its law and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom
of movement and travel in its territory." 23 U.S.T. at 3238.
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Responses to Breach of a Treaty
other signatories; the United States must either fulfill its obligation simultaneously to all the other treaty parties or to none of
them.
Singular promises seem clearly to be associated with the provision of international public goods."' The release of ozonedepleting chemicals into the atmosphere, for example, leads to a
reduction in the protective ozone layer above all nations."9 One
may therefore sensibly phrase a treaty obligation simply as
"each nation shall reduce its production of ozone-depleting substances" and expect useful results. The phrase "grant diplomatic personnel the right to travel freely," in contrast, implicitly
requires some resolution of just which nation's diplomatic personnel is at issue. No nation has its own ozone layer, however.
One can imagine a non-singular promise even with respect to a
pure public good, of course: "The United States promises Russia that it will reduce U.S. production of ozone-depleting substances by 100 tons, and the United States promises France that
it will reduce U.S. production of ozone-depleting substances by
50 tons-and the United States agrees that a ton of reduction
may count against the fulfillment of only one of these two
promises." There do not seem to be any treaties setting forth
non-singular obligations with respect to an international public
good, however."
What of non-public goods and singular promises? Take food
aid to Ghana as an example of something that is not a public
good. Ghana's consumption of the food obtained diminishes
the amount of food available to others, because Ghana may
easily prevent others from consuming the food sent to it. The
aid is therefore not an international public good. A good that is
not a public good is difficult even to describe in singular terms"the United States promises everyone that it will convey $100
118See supra text accompanying notes 53-60.
119
See supra text accompanying notes 55-56. In the Preamble to the Montreal Pro-
tocol, the parties recognized "that world-wide emissions of certain substances can
significantly deplete and otherwise modify the ozone layer in a manner that is likely
to result in adverse effects on human health and the environment." Montreal Proto-
col, supra note 86, at 1550; see also Benedick, supra note 86, at 9-22 (discussing history of scientific discovery and measurement of ozone depletion).
120
The exception would be if one were to consider adherence to a treaty itself as a
public good-assumedly the public good of respect for treaties generally-but then
there is no way to distinguish one treaty from another on these grounds.
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million in food credits to Ghana" does not seem substantively to
be a singular promise despite its form, because the discharge of
the obligation in fact involves only one nation, not all nations
equally. Singular promises thus appear frequently in connection
with international public goods, but rarely or never in connection with non-public goods.
One should also note that singular promises seem closely associated with treaties that one might think of as encouraging
more recent developments in international cooperation. Environmental treaties involving singular promises include agreements that regulate whaling in international waters, the dumping of pollutants in international waters, the preservation of
biodiversity, the production of ozone-depleting substances, and
the production of greenhouse gases.' Multilateral security treaties such as the Nuclear Non-Proliferation Treaty ("NPT") and
the Conventional Forces in Europe agreement l" also involve
singular promises," as do contributions of resources to international organizations such as the World Bank or the United Nations. Human rights agreements would typically seem to involve
singular promises when made by a nation with respect to treatment of its own nationals. Trade-oriented treaties are perhaps
the only broad category of leading-edge international treaties
not involving singular promises,'" although treaties with more
See, e.g., International Convention for the Regulation of Whaling, Dec. 2, 1946,
62 Stat. 1716, 161 U.N.T.S. 72; Convention on Biological Diversity, done June 5,
1992,31 I.L.M. 818 (1992).
"2 Treaty on the Non-Proliferation of Nuclear Weapons, done July 1, 1968, 21
U.S.T. 483,729 U.N.T.S. 161; Treaty on Conventional Armed Forces in Europe, done
Nov. 19, 1990,30 I.L.M. 1 (1991).
12 Cf. Sinclair:
In the case of disarmament treaties, it is necessary for the innocent party to be
able to protect itself against the threat resulting from the arming of the
defaulting State, and accordingly to be permitted to claim release from
obligations owed not only to the defaulting State but also to the other parties.
Sinclair, supra note 88, at 189 (footnote omitted).
124 For example, the General Agreement on Tariffs and Trade sets forth national
treatment requirements for contracting parties. Specifically, Article 111(1) provides
that "[t]he products of the territory of any contracting party imported into the territory of any other contracting party shall be exempt from internal taxes and other internal charges of any kind in excess of those applied directly or indirectly to like
products of national origin." General Agreements on Tariffs and Trade, opened for
signatureOct. 30, 1947, 61 Stat. (5)(6), at A18, 55-61 U.N.T.S. 187 (entered into force
Jan. 1, 1948). This obligation is owed by each contracting party to every other con121
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Responses to Breach of a Treaty
traditional subject matters of diplomatic immunity, extradition,
immigration, and other movements of persons across international borders also involve non-singular promises.
ii. The Special Effects Test and the Singular Promise
The "special effects test" refers, of course, to special "effects"
from a breach. Note that the breach of a singular promise may
have different effects on various victims of such a breach even if
the activity at issue is a singular promise and thus is not differentiable on a country-by-country basis. One might, for example,
consider a promise not to develop nuclear warheads to be a singular promise. The warheads themselves, in potential contrast
to their delivery systems once aimed, are not directed towards a
particular state. Suppose that North Korea were to develop nuclear weapons in violation of its obligations under the Nuclear
Non-Proliferation Treaty. In the case of such a breach, North
Korea would have violated a singular promise, but South Korea
would presumably suffer a much greater effect (in terms of its
decrease in its national security) than, say, Costa Rica. To take
another example, if China were to violate its obligations under
the Montreal Protocol to reduce its production and consumption of ozone-depleting substances, then nations towards the
poles, such as Canada, would suffer a greater impact than nations near the equator. The ozone layer is already thinner towards the poles and the effects of reduction are non-linear; in
addition, a higher percentage of persons dwelling towards the
poles than near the equator have lighter skin, which provides
less protection than does darker skin against the ultra-violet
rays blocked by a thick ozone layer."z Even for the purest of
public goods, therefore, the breach of a singular promise can
produce differential effects.
Under the special effects test, therefore, a nation such as
South Korea (in the NPT example) or Canada (in the Montreal
Protocol example) would have a claim that it had been specially
affected by the breach at issue and thus that it could release itself from the relevant treaty, under the special effects test. The
"special effects" test of the law of treaties states that a specially
tracting party, but on a party-to-party basis rather than on a party-to-whole basis.
- See Benedick, supra note 86, at 9-22, 108-17.
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affected victim of a material breach may suspend "the operation
of the treaty in whole or in part in the relations between itself
and the defaulting State."''
A specially affected nation, i.e.,
South Korea or Canada, could therefore presumably suspend
the operation of the treaty in the relations between itself and
the defaulting state, i.e., North Korea or China. And just what
is the operation of the treaty in the relations between the victim
nation and the breaching nation? That operation can only be a
promise by South Korea not to engage in the development of
nuclear weapons itself (in the NPT example) or by Canada not
to produce or consume various ozone-depleting substances (in
the Montreal Protocol example). But the victim of the breach
has promised to refrain from exactly such activities in its promise to all the other parties to the treaty-that is the definition of
a "singular" promise. Interpreted in this fashion, therefore, the
special effects test would operate to release the specially affected nation from all of its obligations under the treaty.
Such a result seems unfair to those nations not specially affected. Those nations have committed no breach, yet they will
see their own benefits from the treaty shrink with the cessation
of compliance by the specially affected parties. If the promises.
at issue were not singular, then Article 60(2)(b) would not create this problem. The granting of a release option with respect
to the obligations between the specially affected nation and the
defaulting nation would not inevitably affect the specially affected nation's compliance with its obligations to non-breaching
parties. South Korea could, for example, be specially affected
by a North Korean breach of an extradition treaty and refuse to
extradite North Korean citizens upon request, while continuing
to extradite the citizens of other signatory nations and thereby
continue to convey benefits upon the non-breaching parties to
the treaty. With singular promises, however, the special effects
test operates to relieve a specially affected nation of all of its
treaty obligations upon a breach by just one nation.
One might try to rescue the special effects test from its difficulties in singular-promise treaties by arguing that the "effects"
at issue are really the nation-specific "activities" at issue. In that
case, the breach of a singular promise has exactly the same
126
Vienna Convention, supra note 15, art. 60(2)(b), at 346.
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Responses to Breach of a Treaty
"effect" on each party-because only one activity is involved,
and the activity does not occur especially with respect to one nation. An attempt to apply the special effects test will then lead
to a determination that no "special effects" are at issue. For example, North Korea's construction of a nuclear weapon would
have no special effect on South Korea in this activity-oriented
view, because North Korea undertook no activity with respect
to South Korea that it did not also undertake with respect to all
other parties. This "special activity" interpretation, in contrast
to the explanation above of what might be called the "special
impact" interpretation, obviates the need to release any nation
from its treaty obligations. Unfortunately, this special-activity
interpretation in fact guarantees that no one will be released
from a treaty involving a singular promise under the special effects test, because the breach of a singular promise will by definition fail to lead to a difference in nation-specific activity. That
would leave only the unanimous victims test and the radicaleffects test to allow release from a treaty involving a singular
promise.
3. Article 60's Dichotomy Between "Bilateral"and "Multilateral"
Agreements
Article 60 divides treaties into two categories according to the
number of parties thereto: bilateral and multilateral. Material
breach is a necessary and sufficient condition to give the victim
a release option if the agreement is bilateral; the adherents of a
multilateral agreement will obtain a release option if the breach
is not only material, but also meets one of the three other tests
discussed above (the unanimous victims test, the special effects
test, or the universal radical effects test).1 The broad contours
of this differential treatment according to number of parties are,
as discussed above, consistent with rationalist IR theories of
collective action. 12
The use of only two categories of treaties differentiated by the
number of parties, however, tracks collective-action theory only
crudely. According to that theory, the per-party costs of reaching and monitoring agreements rise monotonically with an in127
See supra text accompanying notes 92-114.
supra text accompanying notes 63-66.
'12 See
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crease in the number of those parties."9 A three-party agreement is presumably much cheaper to reach and monitor than a
144-party agreement, and so a 144-party agreement typically
embodies a very expensive set of negotiations compared to a
three-party agreement. Yet the law of treaties lumps both into
the category of "multilateral" agreements, and uses exactly the
same standards to determine whether victims of breach of each
agreement have a release option. If the law of treaties were actually consistent with collective-action theory in this respect,
then the law of treaties would include a rule making the likelihood of granting the release option vary inversely with the
number of parties to the agreement.'30 As with the definition of
material breach, however, the actual rules of the law of treaties
use only a dichotomous, not a continuous, input.
If one were to change the definition of material breach to
make it more consistent with rationalist IR theory by correlating
the benefit deprivations and cost savings with the likelihood of
release on a breach-by-breach basis, then a more fact-intensive
determination would be required. 3' There is thus some tradeoff between satisfying two different implications of the rationaldesign hypothesis-the need for rules to reflect the cooperatedefect dimension of the IPD, and the need for rules to be administrable at a reasonable cost. For a rule using the number of
parties, however, the trade-off is less stark. A continuous rule
related to the number of treaty parties would use as the relevant
variable a factor that can be determined cheaply, in contrast to a
rule keyed to the particular effects of a given breach. The number of parties to an agreement requires nothing more than a
glance at a piece of paper and some arithmetic, rather than a
particularized inquiry into the impacts of a specific breach.
II. RULES OF REMEDIATION
This Part begins with a description of the "law of state responsibility" as it applies to treaties. Essentially, all responses
-2 See Hardin, supra note 58, at 38-49; Olson, supra note 56, at 22-35.
130See
Alphons van de Kragt et al., The Minimal Contribution Set as a Solution to
Public Goods Problems, 77 Am. Pol. Sci. Rev. 112 (1983); Caporaso, supra note 58, at
606-07.
"I See supra text accompanying notes 69-81 and 89-91.
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Responses to Breach of a Treaty
to the breach of a treaty not covered by Article 60 of the Vienna
Convention fall under the aegis of the law of state responsibility.
Such responses include (rarely brought) suits for compensatory
damages for violation of international treaties, the suspension or
termination of a nation's compliance with a treaty other than
the treaty initially breached, diplomatic protests, economic sanctions, and even the use of military force.
Two general principles guide the application of the relevant
rules: "proportionality" and "necessity."'"2 The principle of proportionality addresses both the magnitude and the kind of response. In terms of the magnitude of response, a nation's response to a breach may not inflict harm upon the breacher that
is disproportionate to the harm inflicted upon it by the breach.
A party may not respond to a minor breach of a treaty with a
nuclear strike, for example. In terms of the kind of response to
a breach, the victim is encouraged to choose a means of response similar to the activity at issue in the breach.'33 If one
party breaches a trade-related treaty, for example, then the rule
of proportionality encourages the victim to cease its own compliance with some other trade-related treaty involving the
breacher, rather than ceasing its own compliance with a treaty
oriented towards environmental matters or responding with
measures unrelated to treaties at all, such as an armed raid.
The principle of necessity requires that a nation's response to
a breach be necessary either in order to encourage future compliance with the breached treaty or to remedy the violation. For
example, the victim of a breach may not levy extensive economic sanctions against a breacher who seems to be on the
verge of once more complying with its obligations. These rules
govern responses to breach that would be clearly illegal in the
absence of that breach (which this Article terms a "retaliation")
as well as responses that would be legal even in the absence of
that breach (known as a "retorsion"). Section A describes these
various rules in some detail.
The IR theory relevant to this Part is in some ways more
straightforward than that employed in connection with the rules
132
See Restatement (Third), supra note 21, § 905(1), at 380.
,' See, e.g., Case Concerning the Air Service Agreement of 27 March 1946 (U.S. v.
Fr.), 18 R.I.A.A. 417,433 (Award of Arbitral Tribunal, Dec. 9, 1978).
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of release analyzed in the previous Part of the Article. Partly,
this is so because the rules of remediation are easier to generalize. Remediation is always available in the event of a breach,
whereas a breach gives rise to a release option only under certain conditions. Partly, the rules of remediation are simply too
vague to stand up to theorizing of any great specificity. In any
event, the rationalist IR theory most relevant to Section B is
what this Article terms optimal-deterrence theory. Basic deterrence theory examines whether and to what extent one nation's
threats influence the decisionmaking of other nations contemplating a particular course of action with regard to the nation
making the threat. The relevant theory focuses on two characteristics of the threat: impact on the threatened party if the
threat is carried out, and the likelihood that the threat will in
fact be carried out. Some interaction of these two components
determines whether the threat deters the behavior of concern to
the threat-maker. A highly credible threat of great harm is
much more likely to deter behavior than an implausible threat
of minor harm. When combined with some elementary economics that will be familiar to those who have studied "efficient
breach" in contract law, deterrence theory implies that, from the
perspective of the international legal system as a whole, the optimal threat with which to respond to a potential treaty breacher
is one that, when properly weighted by the likelihood that the
threat will actually be carried out if the breach occurs, confronts
the potential breacher with a harm exactly equal to the harm
that will be inflicted by the breacher upon its victim." This Article terms this conclusion "optimal deterrence theory."
Analyzing international law from this rationalist IR theory
perspective reveals grave inconsistencies with the rationaldesign hypothesis in terms of both proportionality and necessity.
The rule of proportionality implies an upper limit on the magnitude of punishment equal to the harm done by the wrong. Such
M
"1 This framework essentially assumes that each victim of a breach pursues its own
remediation against the breacher, and that one measures the relevant harms on that
basis. There are some potential complexities involved in multilateral treaties in this
respect, since a group of nations might wish to "nominate" a single victim to levy
sanctions against the wrongdoer on behalf of the group (and thereby save the victims
the costs involved in each pursuing separate remediation). This Article ignores this
complexity.
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a limit does face the potential breacher with optimal incentives
not to breach if the potential wrongdoer is certain to suffer that
punishment upon committing the breach. Many violations of
treaties are difficult to detect, however. Even detected violations may not lead to a response because of the high transaction
costs inherent in coordinating responses to or determining violations of international law. In addition, the victim of a treaty
breach typically receives no direct compensation whatsoever for
taking remedial action; sometimes, the only reward to the
remediating victim flows from cessation of the breach and the
resumption of compliance with the treaty by the former
breacher. The victim's incentives to attempt remediation are
therefore substantially lower than in a case, such as when compensatory damages are available, where success in pursuing
remediation will lead to compensation for past harms.
Indeed, portions of the rules of remediation themselves reduce the likelihood that a violation will lead to sanctions against
the breacher and thus are inconsistent with optimal deterrence.
The rule of necessity prohibits remediation that is not necessary
to secure future compliance. Deterrence theory implies an inconsistent principle focused on future compliance involving
breaches yet to occur at all. The similarity-in-kind branch of the
proportionality test prohibits remediation that goes to obligations too different in kind from the obligation at issue in the
breach. Deterrence theory does not recognize any such need to
match retaliatory harm to the initial harm. The law of state responsibility also encourages (and sometimes even requires) parties to delay the application of sanctions. Sanctions delayed
may be similar in effect to sanctions denied entirely.
The degree of consistency between the rules of remediation
governing treaties and the rational-design hypothesis is therefore rather low, at least when optimal deterrence theory is considered to be the relevant rationalist IR theory. The source of
this inconsistency is the greatly underdeterrent impact of the
rules of proportionality and necessity in a world of difficult-todetect treaty violations, rare compensatory damages, and sometimes temporary breaches. Section C attempts to use the implications of an alternative, (arguably) rationalist IR theory focused on the possibility of a "spiral of misperceptions" to
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explain how rules that are underdeterrent under the standard
assumptions of deterrence theory might still be consistent with
one version of the rational-design hypothesis. This misperceptions-spiral theory postulates that the international system is rife
with misperceptions, and that such misperceptions are systematically biased towards an overestimation by each nation of the
harm intended it by the actions of other nations. An initial uncooperative act and the interaction of such misperceptions can
produce an escalating spiral of retaliations that rapidly presents
more of a threat to international cooperation than the initial
breach.135
If one accepts this misperceptions-spiral theory, then the rules
of remediation should impose penalties on breaching parties
that are underdeterrent from the point of view of deterrence
theory. Sanctions that are ideal from an optimal-deterrence
theory perspective may lead nations into dangerous spirals of
retaliation and misperception. The penalties that function optimally in the world of misperceptions might be
"underdeterrent" if correctly perceived, but misperception can
render the rule-dampened response optimally deterrent in operation-at least so long as the initial remediation does not lead
to some reflexive, further retaliation by the initial breacher (and
international law already impliedly bars such retaliations). In
addition, this misperceptions-spiral theory provides some explanation of the in-kind aspect of the rule of proportionality. If
misperception is pervasive and biased towards a perception of
excess harm by the recipient of the retaliation, then using measures of remediation similar in kind to the breached obligation
seems likely to reduce somewhat the chances of retaliatory spirals. A nervous nation should find it easier to believe that a particular political action taken against it by a rival is genuinely a
response to a breach rather than an unrelated hostile action if
the response is closely tied in kind to the breach. The similarity135 The seminal work on this model is Robert Jervis, Perception and Misperception
in International Politics (1976). See also Richard Ned Lebow, Between Peace and
War: The Nature of International Crisis (1981); Charles Glaser, Political Consequences of Military Strategy: Expanding and Refining the Spiral and Deterrence
Models, 44 World Pol. 497 (1992). For a formalized view with some insights of its
own, Andrew Kydd, Formal Theory and the Spiral Model,
(forthcoming 1997).
-
World Pol.
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in-kind branch of the proportionality test in fact encourages responses closely tied to the breach in this fashion, and thus discourages qualitatively dissimilar responses to breach especially
likely to give rise to excessive or spiral-inducing retaliations.
A. The Rules of Remediation in Treaty Law
Part I discussed "rules of release," those doctrines that govern
whether the victim of a breach may legally release itself from its
obligations under the breached agreement.'36 The "law of treaties" is the source of these rules.' The "law of state responsibility" governs the other broad category of non-negotiated responses to a breach, which this Article calls the "rules of
remediation." The rules of remediation are most easily defined
simply by exclusion: These rules govern those responses to
breach of a treaty that do not involve an effort by the victim to
release itself from its obligations under the breached agreement.
The rules of remediation instead cover the victim's efforts to obtain compensation (monetary or in kind) or the victim's attempt
to punish or persuade the breacher with military, economic, or
diplomatic sanctions.
The rules of remediation include rules governing suits for
compensatory damages, but the most common responses to
treaty breaches in international law do not involve direct reference to a court (especially in search of compensatory damages).
Courts of international law are typically courts of consensual jurisdiction. A state may therefore simply decline to be sued.'38
136
See supra text accompanying notes 17-26.
117See supra note 17 and accompanying text.
138For example, the International Court of Justice does not have automatic juris-
diction over any dispute. Rather, parties must recognize the jurisdiction of the ICJ.
Statute of the International Court of Justice, 59 Stat. 1055, 3 Bevans 1153. Article 36
of the Statute of the International Court of Justice provides in pertinent part:
1. The jurisdiction of the Court comprises all cases which the parties refer to
it and all matters specially provided for in the Charter of the United Nations or
in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation
to any other state accepting the same obligation, the jurisdiction of the Court in
all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach
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This fact tends to limit the usefulness of litigation seeking monetary compensation (or any other remedy). In addition, the sorts
of breaches at issue in many modem treaties are difficult to
convert into monetary terms. How many dollars (or whatever
the relevant currency might be) of harm result when a state
emits ozone-depleting substances into the stratosphere in violation of the Convention on the Protection of the Ozone layer and
its follow-on agreements, or detonates a nuclear bomb in the
atmosphere in violation of the Limited Test Ban Treaty? If one
state's commandos blow up another state's ship or one state's
military forces shoot down an airliner with the loss of all lives
aboard, these violations of customary law present issues of
valuation that are much more manageable.139 The payment of
compensation from one state to another in fact occurs with
some frequency in such cases.Y With respect to many treaties,
in contrast, the difficulties of valuation are frequently too great
to overcome, especially given the generally primitive state of the
public international legal system.'' Instead of a lawsuit, the victim of a breach takes some unilateral action from a broad menu
of diplomatic and military options. Such unilateral remediation
measures might include the formal expression of displeasure in
of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation.
3. The declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or for a certain
time.
Id., 59 Stat. at 1060.
139 For example, the United States provided compensation to the families of victims
killed following the downing of Iran Air Flight 655 in the Persian Gulf on July 3,
1988. Sompong Sucharitkul, Procedure for the Protection of Civil Aircraft in Flight,
16 Loy. L.A. Int'l & Comp. L.J. 513, 529 (1994); Marian Nash Leich, Denial of Liability: Ex Gratia Compensation on a Humanitarian Basis, 83 Am. J. Int'l L. 319
(1989). In this case, the Iranian government submitted a complaint against the
United States to the International Court of Justice, which remains pending.
Sucharitkul, supra, at 533-34.
10 In the case of the downing of Iran Air Flight 655, the United States offered ex
gratia compensation to families of the victims. Such payments are made out of humanitarian consideration and are not required under international law. See generally
Harold G. Maier, Ex Gratia Payments and the Iranian Airline Tragedy, 83 Am. J.
Int'l L. 325, 327 (1989) (noting that under current international legal principles no
compensation is required from a state that causes injuries to civilians in a combat
zone).
141 See supra text accompanying note 6.
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a diplomatic note, a decision to cease complying with various
unbreached agreements made with the breaching nation, economic sanctions, or military actions. Even though the state undertaking such a response does not directly refer its dissatisfactions to a court, the response must still meet certain criteria set
forth in the rules of remediation if that response is to be legally
permissible.
The relevant international legal standard governing responses
to breach seeking remediation is: (1) that the response be in
some rough sense proportionate,in magnitude and kind, to the
breach; and (2) that the response be necessary to restore compliance by the breaching party with the breached agreement.
The Restatement (Third) of Foreign Relations Law of the
United States sets forth the particular formulation of the rules
of necessity and proportionality that this Article will employ:
(1) ...
A state victim of a violation of an international obligation by another state may resort to countermeasures that
might otherwise be unlawful, if such measures
(a) are necessary to terminate the violation or prevent
further violation, or to remedy the violation; and
(b) are not out of proportion to the violation and the injury suffered.'
The applicability of necessity and proportionality to measures
not otherwise unlawful, known as retorsion, is a somewhat con14,2 Restatement (Third), supra note 21, § 905(1), at 380.
The International Law
Commission is currently working on a Draft Code of State Responsibility. See Robert Rosenstock, The Forty-Seventh Session of the International Law Commission, 90
Am. J. Int'l L. 106, 106-09 (1996); Oscar Schachter, Dispute Settlement and Countermeasures in the International Law Commission, 88 Am. J. Int'l L. 471 (1994). See
generally The International Law Commission's Draft Articles on State Responsibility
(Shabtai Rosenne ed., 1991) (collecting Draft Articles and ILC commentary and
tracing history of official codification).
Section 905(2) of the Restatement (Third) notes that not only § 905(1) but also the
United Nations Charter constrains any use of force in response to a breach of treaty.
Section 905(2) provides that "[t]he threat or use of force in response to a violation of
international law is subject to prohibitions on the threat or use of force in the United
Nations Charter, as well as to Subsection (1)." Restatement (Third), supra note 21, §
905(1), at 380; see Thomas M. Franck, Who Killed Article 2(4)? Or: Changing Norms
Governing the Use of Force By States, 64 Am. J. Int'l L. 809 (1970); W. Michael Reisman, Article 2(4): The Use of Force in Contemporary International Law, 78 Proc.
Am. Soc'y Int'l L. 74 (1984).
76
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troversial doctrine and is not specifically discussed in the Restatement.'43
What are these standards of "necessity" and "proportionality" set out in section 905(1) of the Restatement? Generally,
considerations of necessity involve the urgency and efficacy of
unilateral remedies as opposed to the use of negotiated responses, while proportionality relates to the modulation, in
magnitude and in kind, of the response to the breach.
The concept of necessity flows from the general preference
shown in international law for the negotiated settlement of disputes. ' 4 The United Nations Charter, for example, states that
member nations "shall settle their international disputes by
peaceful means in such a manner that international peace and
security, and justice, are not endangered."1 5
143 The Restatement (Third) defines retorsion generally as "acts not involving the
use of force in response to any unfriendly act, whether illegal or not." Restatement
(Third), supra note 21, § 905 rptr. note 8, at 390; see also Julius Stone, Legal Controls
of International Conflict 288-90 (1954) (defining retorsion as an unfriendly act that is
not contrary to international law or treaty taken in retaliation for objectionable act of
another state). It has been noted that "there is no limit in the game of retortions [sic]
between States as it could be played ad infinitum." Denis Alland, International Responsibility and Sanctions: Self-Defence and Countermeasures in the ILC Codification of Rules Governing International Responsibility, in United Nations Codification
of State Responsibility 143, 150 (Marina Spinedi & Bruno Simma eds., 1987).
According to the Restatement (Third):
Under this section, countermeasures in response to a violation of an
international obligation are ordinarily justified only when the accused state
wholly denies the violation or its responsibility for the violation; rejects or
ignores requests to terminate the violation or pay compensation; or rejects or
ignores proposals for negotiation or third-party resolution. Countermeasures
are to be avoided as long as genuine negotiation or third-party settlement is
available and offers some promise of resolving the matter. A showing of
necessity is particularly important before any drastic measures of self-help are
taken.
Restatement (Third), supra note 21, § 905 cmt. c., at 381. The last sentence quoted
above shows the tendency of the principles of necessity and proportionality to blend
into one another. For a general review of negotiated and unilateral measures, see
Schachter, supra note 142.
3. For example, the U.N. Security Council determined
'45 U.N. Charter art. 2,
that internal strife in Haiti constituted a threat to peace and security. See S.C. Res.
940,49th Sess., 3413th mtg. at 2, U.N. Doe. S/RES/940 (July 31, 1994). Similarly, the
Security Council concluded that the Iraqi repression of the Kurds following the Gulf
War, and the resulting refugee exodus, constituted a threat to peace and security.
See S.C. Res. 688, U.N. SCOR, 46th Sess., 2982d mtg. at 31-32, U.N. Doc. S/INF/47
(Apr. 5, 1991). See also Ruth Gordon, United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond, 15 Mich. J. Int'l L. 519, 522 (1994) (discussing
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One recent tendency in international practice has been to
view quite expansively the conceptual territory covered by
threats to "international peace and security."
Chapter VI of the Charter sets forth the particulars of a
scheme in which disputants "shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or
other peaceful means of their own choice."'" Note that no unilateral remedies are listed among these exemplary peaceful
means. Even in disputes that lack the potential to endanger international peace and security, one can readily find some support in international legal sources for the proposition that negotiation is the mode of choice for resolving the dispute.
Treaties, of course, are consensually negotiated, and one
should therefore be unsurprised to find that the law of treaties,
as well as individual treaties, are no exception to the general international legal principles favoring negotiation. The Vienna
Convention provides a default rule favoring negotiation in Article 65: nations wishing to suspend or terminate their treaty obligations must notify other parties, and then use the mechanisms
set forth in Chapter VI of the U.N. Charter. 7 Virtually every
"ever-broadening category" of threats to the peace); Rajendra Ramlogan, Towards a
New Vision of World Security: The United Nations Security Council and the Lessons
of Somalia, 16 Houst. J. Int'l L. 213 (1993) (reviewing Security Council action with
respect to Somalia).
14 See U.N. Charter ch. VI, art. 33, 1 1, which concerns the pacific settlement of
disputes. This chapter gives the Security Council the authority to investigate any dis-
pute or situation which might lead to international friction or give rise to a dispute.
The Security Council is also authorized to recommend appropriate procedures or
methods of adjustment to resolve the dispute. See generally Dispute Settlement
Through the United Nations (K. Venkata Raman ed., 1977) (compiling studies of
procedures and mechanisms for peaceful settlement of disputes in the United Nations
system).
147 Article 65 of the Vienna Convention provides:
1. A party which, under the provisions of the present Convention, invokes
either a defect in its consent to be bound by a treaty or a ground for
impeaching the validity of a treaty, terminating it, withdrawing from it or
suspending its operation, must notify the other parties of its claim. The
notification shall indicate the measure proposed to be taken with respect to the
treaty and the reasons therefor.
2. If, after the expiry of a period which, except in cases of special urgency,
shall not be less than three months after the receipt of the notification, no party
has raised any objection, the party making the notification may carry out in the
manner provided in article 67 the measure which it has proposed.
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recent treaty also includes specific provisions setting forth some
consensual, negotiation-oriented procedure for dispute resolution. " Few treaties include any discussion of any other response to a breach.' 9 It is chiefly with a nod towards this sense
of exhausting mutual discourse that the unilateral remedy must,
in the words of the Restatement, be "necessary to terminate the
violation or prevent further violation, or to remedy the violation
,,1SO
3. If, however, objection has been raised by any other party, the parties shall
seek a solution through the means indicated in Article 33 of the Charter of the
United Nations.
4. Nothing in the foregoing paragraphs shall affect the rights or obligations
of the parties under any provisions in force binding the parties with regard to
the settlement of disputes.
5. Without prejudice to article 45, the fact that a State has not previously
made the notification prescribed in paragraph 1 shall not prevent it from
making such notification in answer to another party claiming performance of
the treaty or alleging its violation.
Vienna Convention, supra note 15, art. 65, at 347-48.
148See Setear, Iterative Perspective, supra note 3, at 215-16.
149 For example, the ABM Treaty between the United States and the Soviet Union
provides for the establishment of a Standing Consultative Commission to consider
questions concerning compliance with the treaty obligations. Treaty on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S.-U.S.S.R., art. XIII, 23
U.S.T. 3435, 3444-45. It does not contain any other provisions relating to possible
violations or responses to breach.
'so As indicated, the Restatement (Third) provides that:
a state victim of a violation of an international obligation by another state may
resort to countermeasures that might otherwise be unlawful, if such measures
(a) are necessary to terminate the violation or prevent further violation, or to
remedy the violation; and (b) are not out of proportion to the violation and the
injury suffered.
Restatement (Third), supra note 21, § 905(1), at 380.
One of the earliest pronouncements of the principle of necessity came following the
Caroline incident of 1837, when British forces entered U.S. territory and destroyed
the steamer Caroline, which had been supplying Canadian rebels. The British asserted that the action was justified due to "the necessity of self-defence and selfpreservation." Letter of Mr. Fox to Mr. Forsyth (Feb. 6, 1838), reprinted in H.R.
Exec. Doc. 302, 25th Cong., 2d Sess. 3 (1838). In response, Secretary of State
Webster noted that the right of self-defense only applies where the necessity "is instant, overwhelming, and leaving no choice of means, and no moment for deliberation." Letter of Daniel Webster, Secretary of State, to Lord Ashburton, British Minister (Aug. 6, 1842), quoted in 2 John Bassett Moore, Digest of International Law 412
(1906). See also R.Y. Jennings, The Caroline and McLeod Cases, 32 Am. J. Int'l L.
82 (1934) (noting precedential value of exchange of letters given parties essential
agreement on applicable law); Robert W. Tucker, Reprisals and Self-Defense: The
Customary Law, 66 Am. J. Int'l L. 586, 592 (1972) (noting that a response is legitimate only if alternative means of redress are unavailing).
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The additional requirement of proportionality means that,
even when unilateral remedies are open to the victim nation as a
matter of necessity, a nation must choose its particular response
carefully. That response must, in the words of one oft-cited decision on the issue of breach, "have some degree of equivalence
with the alleged breach ... ,... To understand exactly when a
response is precisely proportionate can be a challenge, but one
may readily imagine disproportionate examples. Suppose that
Iceland and Great Britain were to conclude a treaty allowing
each nation to take 100 tons annually of a given species of fish
from the other's territorial waters. Suppose further that Iceland
then admitted to having taken 101 tons of fish from Britain's
waters, announced that it intended to take exactly 101 tons of
such fish next year, and clearly indicated its unwillingness to enter into negotiations on the matter. In this case it would be an
illegally disproportionate response for Great Britain to repudiate every bilateral treaty between itself and Iceland.
Given the difficulties of judging the harm involved in various
breaches of a treaty, of course, the similarity-in-magnitude
branch of the proportionality test is obviously difficult to apply
precisely. Nonetheless, this Article assumes that the idea underlying the magnitude-of-response branch of the proportionality test is to prevent the victim of a breach from inflicting upon
the breacher a harm significantly greater than the harm inflicted
upon the victim.152 Indeed, this Article assumes that the ideal re151 Case Concerning the Air Service Agreement of 27 March 1946 (U.S. v. Fr.), 18
R.I.A.A. 417, 433 (Award of Arbitral Tribunal Dec. 9, 1978). See generally Damrosch, supra note 21 (using Air Services Agreement arbitration as case study of retaliatory sanctions for an alleged breach of an agreement).
I Bruno Simma defines proportionality as a general notion derived from the word
"proportion" which signifies the "due relation of one part to another" or "such relation of size etc., between things or parts of things as renders the whole harmonious."
Bruno Simma, Proportionality, in 7 Encyclopedia of Public International Law 396-97
(1984). In discussing self-defense, in which the concept of proportionality also plays a
role, he notes:
Like domestic law, therefore, international law has developed several legal
limits to the exercise of the right of self-defense, the most notable being that of
the principle of proportionality which in this context serves as the criterion by
which the international legal community or its organs can ultimately judge on
the lawfulness of the exercise of self-defense: It is lawful only if it is restricted
to the measures necessary to fend off a particular attack or, in other words, if
the amount of force used to repel an attack is commensurate with the
objectives that a plea of self-defense might reasonably entitle a state to achieve
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sponse in terms of proportionality would inflict no more harm
than the breacher inflicted upon the victim, and that any
"overage" in the response must be a good-faith result of difficulties in estimating the relevant harms precisely. As to the similar-in-kind portion of the proportionality test, the general idea is
not especially difficult to state: The response should ideally involve the same type of obligation as the breach. One cannot
draw this test too tightly around the breach, of course. The obligation of the victim most closely related to the breached obligation is presumably the victim's obligations under the very
treaty that has been breached, but the treatment of those obligations is a matter of Article 60 of the Vienna Convention, not of
the law of state responsibility.53 Equivalence in some broader
sense between breached obligations and the retaliation must
therefore be at issue in the similar-in-kind portion of the proportionality requirement. For example, the breach of one international fishery treaty might, in the similarity-in-kind sense, lead
most proportionally to the retaliatory cessation of compliance
with some other treaty governing an international fishery. The
victim's cessation of compliance with an agreement governing
some other area of commerce would be somewhat less similar in
kind. In contrast, the victim's cessation of compliance with an
arms control agreement, or the cessation of compliance with
some international obligation that was not a treaty-based obligation at all, might be "disproportionate" under the similarity-inkind branch of the disproportionality requirement."'
or if restricted to the preservation or restoration of the status quo ante.
Id; see also Greig, supra note 21, at 322-27 (reviewing status of proportionality's
magnitude of response test in international judicial decisions); D.M. McCrae, Proportionality and the Gulf of Maine Maritime Boundary Dispute, 19 Can. Y.B. Int'l L.
287, 294-300 (1981) (arguing that, as applied by international tribunals, the principle
of proportionality stems from broader principles of equity and justice).
According to the Restatement (Third), "[t]he requirements of necessity and proportionality are concurrent. Necessity may justify prompt action, but such action may
not exceed the bounds of proportionality, and should cease when it is no longer necessary." Restatement (Third), supra note 21, § 905 rptr. note 3, at 387 (internal reference omitted).
"53 See supra text accompanying notes 17-30.
"5 The Restatement (Third) recognizes that "[c]ountermeasures are ordinarily related to the violation. For instance, if a state has violated an obligation in respect of
trade, the response of the other state will generally be limited to a corresponding
trade restriction rather than a measure such as denial of airline landing rights." Re-
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B. Optimal-DeterrenceTheory and the Rules of Remediation
This Section combines various notions from that portion of
rationalist IR theory concerned with deterrence theory with
some elementary economics. This combination of IR and economic theories implies that the optimal sanction with which to
face a potential wrongdoer is equal to the product of the likelihood and the magnitude of punishment, such that the potential
wrongdoer faces a harm equal to the potential harm caused to
the community by the breach. The rules of remediation in
treaty law display a poor fit with the implications of this theory
for the rational design of international legal rules, however.
The similarity-in-magnitude portion of the proportionality requirement might appear to equilibrate the harms. Such an
equilibration would, in fact, lead to optimal results only if the
probability of detecting and sanctioning a treaty violator were
one-that is, if the probability were a certainty. A wide variety
of factors work to reduce the probability of detecting and sanctioning a treaty violator to significantly below one, however.
These factors include the difficulty of detecting violations, the
limitations on response stemming from the rules of necessity
and proportionality, and the difficulties of coordinating and rewarding nations that pursue measures of remediation. Rationalist IR theory and the rules of remediation are therefore inconsistent.
1. Optimal-DeterrenceTheory
IR theorists have focused much of their work on conflict and
on concerns of national security, rather than on cooperation and
related national goals. Preventing an adversary from taking acstatement (Third), supra note 21, § 905, cmt. d, at 381-82. However, the Restatement
(Third) recognizes that "an unrelated response is not unlawful so long as it is not excessive in relation to the violation." Id. at 382. Note that, if taken at its face value,
this sentence denies any independent force to the similarity-in-kind component of the
proportionality requirement. This commentary adds that:
Different steps may be taken at different stages of a dispute. For instance,
limited measures may be taken when a state refuses to negotiate (e.g., freezing
the offending state's assets); stronger measures may be used when a state
refuses to comply with a judgment of an international tribunal (e.g., seizure and
appropriation of assets).
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tion opposed to a nation's interests is a primary concern of national security. The basic idea of such "deterrence theory" or
"decision theory" is that a country contemplating an attack is
subject to influence through the threat of punishment. In this
model, the crucially relevant factors in determining the perceived threat of punishment are the likelihood and the magni-
tude of such punishment. 5 The product of the likelihood and
magnitude of punishment combine to produce an "expected
loss" from punishment.'56 If the party contemplating attack is
"risk neutral"-that is, if the party does not place any independent value upon certainty or uncertainty-then the perceived harm to the threatened party from the expected loss is
simply the product of the likelihood and magnitude of punishment." As the likelihood of actually being the subject of a sanction diminishes, the magnitude of the sanction must increase in
order to maintain the same deterrent effect. If the expected
losses resulting from the contemplated attack exceed the expected gains to the attacker, then, to a theoretician of deterrence, the nation contemplating attack will be deterred from actually attacking.'58
5I See Christopher Achen & Duncan Snidal, Rational Deterrence Theory and
Comparative Case Studies, 41 World Pol. 143 (1989) (applying deterrence theory to a
series of case studies); Alexander L. George & Richard Smoke, Deterrence in
American Foreign Policy: Theory and Practice (1974) (tracing development of modern deterrence theory in American foreign policy); Thomas C. Schelling, The Strategy of Conflict'6 (1960) (noting that "a threat has to be credible to be efficacious, and
that its credibility may depend on the costs and risks associated with fulfillment");
Robert Jervis, Deterrence Theory Revisited, 31 World Pol. 289 (1979) (reviewing
George & Smoke, supra, and giving broad historical overview of the development of
deterrence theory).
156 For an analysis of expected utility theory, see Bruce Bueno de Mesquita, The
Contribution of Expected Utility Theory to the Study of International Conflict, in
The Origin and Prevention of Major Wars 53 (Robert Rotberg & Theodore Rabb
eds., 1988); Bruce Bueno de Mesquita & David Lalman, Reason and War, 80 Am.
Pol. Sci. Rev. 1113 (1986); Bruce Bueno de Mesquita, An Expected Utility Theory of
International Conflict, 74 Am. Pol. Sci. Rev. 917 (1980).
17 For an attempt to measure domestic preferences of risk in international conflicts, see James D. Morrow, On the Theoretical Basis of a Measure of National Risk
Attitudes, 31 Int'l Stud. Q. 423 (1987).
"
Lebow and Stein provide a standard statement of the calculus of deterrence:
Deterrence seeks to prevent undesired behavior by convincing those who
might contemplate such action that its costs would exceed its gains. In the area
of security, deterrence usually attempts to prevent a military challenge; but it
also can and has been used to try to prevent unacceptable military deployments
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This sort of theorizing should be accompanied with many
qualifications,'" especially when applied to such issues as nuclear holocaust."w For our purposes, however, the important notion is that some combination of the likelihood and magnitude of
the response to an action reliably affects the decisionmaking of
a nation considering a particular action. In the context of treaty
breaches and the rules of remediation, the relevant likelihood is
that the victim(s) of the breach will detect and respond to the
breach with some unilateral remedy. The relative magnitude of
the response is the quantum of harm inflicted upon the breacher
by whatever action-vigorous diplomatic condemnation, the
cessation of compliance with other (unbreached) treaties, eco-
(such as the deployment of Soviet missiles in Cuba) or nonmilitary actions that
defenders perceive as threatening to their national security. Deterrence
requires that the "defender" define the behavior that is unacceptable, publicize
the commitment to punish or restrain transgressors, demonstrate the resolve to
do so, and possess the capabilities to implement the threat.
Richard Ned Lebow & Janice Gross Stein, Deterrence: The Elusive Dependent Variable, 42 World Pol. 336, 336 n.1 (1990); see also Janice Gross Stein, Deterrence and
Reassurance, in 2 Behavior, Society, and Nuclear War 8 (Phillip Tetlock et al. eds.,
1989) (reviewing strengths and weaknesses of deterrence theory and outlining strategies of reassurance).
1 As noted by Lebow and Stein, "[t]he testing of theories of deterrence confronts
especially difficult data requirements that derive from the focus of the theory on the
intentions of actors. This focus creates empirical and conceptual problems that
threaten valid inference." Lebow & Stein, supra note 158, at 347. In addition, they
note that:
Existing theories of deterrence rely on technical, context-free definitions of
deterrence, but deterrence-and any other strategy of conflict managementtakes on meaning only within the broader political context in which it is
situated. That context defines the strategy: it informs the purposes for which it
is used. The attempt to interpret strategies of conflict management within their
political contexts, however, introduces a significant element of subjectivity in
the selection and coding of deterrence cases.
Id. at 353.
'1 See generally Alexander George, Managing U.S.-Soviet Rivalry: Problems of
Crisis Prevention (1983); Psychology and Deterrence (Robert Jervis et al. eds., 1985);
Alexander L. George, Crisis Management: The Interaction of Political and Military
Considerations, 26 Survival 223 (1984) (attempting to clarify the nature of tension
between military needs and controlling crisis escalation); R. Harrison Wagner, Rationality and Misperception in Deterrence Theory, 4 J. Theoretical Pol. 115 (1992);
Paul Huth et al., System Uncertainty, Risk Propensity and International Conflict
Among the Great Powers, 36 J. Conflict Res. 478 (1992); Phil Williams, Crisis Management (1976).
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nomic sanctions, and so forth-that the victim(s) take in response to the breach.16'
Because deterrence theory often involves issues of vital national security, the focus of work in this area is typically on how
best to achieve a very high level of deterrence regardless of the
damage inflicted on others by the actual or promised threat."'
In the context of treaties concerned with a very broad range of
activities and interests, however, one might be more willing to
tolerate treaty violations and to take into account the interests
of the treaty violator. From the point of view of the international community, there is presumably an "optimal" level of deterrence with respect to treaty violations-the point at which no
treaty violations occur that harm the community more than they
help it (including the breacher) but at which all treaty violations
occur that do help the community (including the breacher) 63 If
the combination of likelihood and magnitude of punishment for
a given sanction equals the harm imposed upon the community
by the breach, then a potential breacher will commit a breach
only when the gains from doing so benefit the community (in
terms of the breacher's interests, typically) more than they harm
that community (in the form of the victim's interests, typically).' If the likelihood of punishment is one-that is, a cer161 For an analogous application of these principles to contract law, see Richard A.
Posner, Economic Analysis of Law (3d ed. 1986).
162 See, e.g., Colin Gray, Nuclear Strategy: A Case for a Theory of Victory in Strategy and Nuclear Deterrence 23, 54-55 (Steven Miller ed., 1984) (arguing for revival
of concept of strategic superiority); John J. Mearsheimer, Conventional Deterrence
203 (1983) (arguing that deterrence is most likely to fail when one side has a plausible
Blitzkrieg option available).
163 This is a standard formulation of utility maximization, which both economists
and "neo-Realists" use. This formulation gives equal weight to the preferences of all
nations, including the breaching state. Thus, it is an amoral perspective on breach.
164 According to Viotti and Kauppi:
To act rationally requires a rank ordering of preferred goals, consideration
of all feasible alternatives to attain those goals in the light of existing
capabilities, and consideration of the costs and benefits associated with using
particular methods to attain particular goals. The assumption is often made in
international relations research that actors do, indeed, act rationally. The
assumption is made in order to develop hypotheses and to produce insights on
world politics.
Viotti & Kauppi, supra note 37, at 602. As Stein explains:
If deterrence is to work, the defender must carefully define the unacceptable
action, communicate the commitment to punish transgressors or to deny them
their objectives, possess the capability to carry out this threat, and demonstrate
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tainty-then a sanction that imposes a harm on the breacher
equal to the harm suffered by the community will produce optimal results. 5 This outcome should be familiar to those readers
versed in the notion of "efficient breach" in contracts law or optimal deterrence in criminal law.1"
2. Some Difficulties with Deterrence Theory and the Rules of
Remediation
How do the actual rules of remediation in international law
compare with the implications of rationalist IR theory? At first
glance, the similarity-of-magnitude component of the proportionality requirement would seem quite consistent with a rational-design hypothesis based on deterrence theory. Proportionality, after all, requires a response roughly equivalent in its
impact upon the breacher to the impact of the breach upon its
victims. If the "probability" of punishment is actually a certainty, then the similarity-of-magnitude component of the proportionality requirement would in fact be consistent with optimal sanctioning in the law of state responsibility.
If the likelihood of detection and punishment is less than a
certainty, however, then a magnitude of punishment exactly
equal to the harm suffered by the victim will under-deter
breaches, at least by "risk-neutral" parties.67 The actual punthe resolve to do so.
Stein, supra note 158, at 10.
165 As Achen and Snidal note:
In the simplest version of rational deterrence theory, there are two rational
actors, the initiator and the defender. The defender seeks to prevent some
action by the initiator. (For concreteness, we will assume that it is an attack on
the defender or on a third party.) The initiator moves first, either attacking or
not. Then the defender chooses whether to engage in war or to capitulate. All
this is common knowledge between the two players. In the politically most
relevant version, however, what is not known to the initiator with certainty is
the defender's ability and commitment to fight back after the attack.
Achen & Snidal, supra note 155, at 151.
16 In the contractual context, setting compensatory damages equal to the losses suffered by the non-breaching party will lead rational actors to commit all possible efficient breaches and refrain from committing all inefficient breaches. See Posner, supra note 161, § 4.8, at 105-08. Contracts doctrine implicitly assumes that the
likelihood of detecting a breach of contract is a certainty. Id. at 105.
167 For a straightforward exposition of this point, see Richard A. Posner, Antitrust
Law 223-24 (1976). Recall that compared to "risk-neutral parties," "risk-averse" individuals are more sensitive to losses than to gains, while "risk-seeking" individuals
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ishment in those cases where there is in fact a sanction levied
against the wrongdoer must exceed the actual harm to the victim
of the breach if the expected magnitude of the sanction is to present the potential breacher with the proper incentives." As the
probability of detecting and sanctioning a breacher shrinks, the
inadequacy of a sanction limited to the harm actually inflicted
by the breach will grow.
There are at least six reasons to believe that the probability
that a breaching nation will actually be the subject of a retaliatory response is in fact less than one. Some of those reasons are
grounded in the nature of the international political system,
while some flow from the law of state responsibility itself.
First, in many treaties, the probability of detection is quite
likely to be (substantially) less than one. In the case of environmental treaties, the technology available for the detection of
violations is far from simple or universally available, and the
are more sensitive to gains than to losses. The calibration of the proper magnitude of
sanctions against non-risk-neutral breachers is somewhat more complicated. According to Achen and Snidal, a principal element of rational deterrence theory is that
"[a]ctors have exogenously given preferences and choice options, and they seek to
optimize preferences in light of other actors' preferences and options." Achen and
Snidal, supra note 155, at 150.
Risk propensities capture the fact that different decision makers may make
different choices when faced with the same set of alternatives solely because of
their attitudes towards choosing options with probabilistic outcomes. The
concept of risk propensity is most clearly revealed by comparing patterns of
individual choice between options that have similar expected value but vary in
their probabilities and payoffs. For example, assume that there are two
alternatives with the same expected value. Also assume that the first
alternative has a high payoff but a low probability of receiving that payoff,
whereas the second alternative has a low payoff but a high probability. A riskacceptant actor will select the former whereas a risk-averse actor will choose
the latter.
Huth et al., supra note 160, at 482. In this study, the authors examined the consequences of the several variables, including the risk propensity of national decisionmakers, on international conflict. For a lucid discussion not only of the effect of risk
preferences but also of a variety of other factors that would ideally be taken into account in setting the magnitude of sanctions, see Richard Craswell, Damage Multipliers in Market Relationships, 25 J. Legal Stud. 463 (1996).
16, For a related theoretical approach, see Janice Gross Stein & Louis Pauly,
Choosing to Co-operate: How States Avoid Loss (1995); Jack S. Levy, An Introduction to Prospect Theory, 13 Pol. Psychol. 171, 174-79 (1992) (demonstrating how
prospect theory integrates empirical anomalies of expected utility decision theory);
Amos Tversky & Daniel Kahneman, Rational Choice and the Framing of Decisions,
59 J. Bus. 251 (1986).
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range of activities impliedly under scrutiny is vast. To take just
whaling and ozone-depleting activities as examples, one must
monitor nearly the whole of the ocean to prevent violations of
the International Convention on the Regulation of Whaling, 69
and one cannot practicably determine the source of ozonedepleting substances once those substances have risen above the
lowest layers of the atmosphere.'7" In the arms-control arena,
recent disclosures concerning Iraq's ability to conceal several
programs related to weapons of mass destruction must call into
serious question the ability of even a technologically sophisticated nation like the United States to monitor reliably the activities of even high priority intelligence targets.171 Furthermore,
in the arms-control arena and in other areas regulated by treaty
law, a government must be careful about bringing violations to
the attention of the public even when detected. Disclosing evidence of such violations too quickly, or with too much specificity, can compromise the. very sources of intelligence that allowed
detection in the first place or lead to domestic political pressures
that force the disclosing government into an excessively hasty
response."n For all these reasons, one must assume that the
probability of detecting violations of many treaties is substantially less than one.
Second, the high transaction costs of determining the applicability of international legal standards and coordinating any response will dissuade nations from pursuing responses to a
16 For example, in 1994 it was disclosed that the Soviet Union had misstated the
number of whales killed in its reports to the International Whaling Commission. Between 1948 and 1973, the Soviet Union killed over 48,000 humpback whales rather
than the 2,710 it officially reported to the Commission. See David D. Caron, The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures, 89 Am. J. Int'l L.
154, 171-72 (1995); David Hearst & Paul Brown, Soviet Files Hid Systematic Slaughter of World Whale Herds, Gazette (Montreal), Feb. 12, 1994, at D9.
00 See Peter H. Sand, Lessons Learned in Global Environmental Governance, 18
B.C. Envt'l Aff. L. Rev. 213,267 (1991).
- See Barry Keliman, Bridling the International Trade of Catastrophic Weaponry,
43 Am. U. L. Rev. 755, 830-35 (1994) (discussing the difficulties of verification of
nonproliferation, as compared to "traditional" arms control, agreements).
11 For example, when the U.S. government releases photographs taken from advanced reconnaissance satellites, it often deliberately distorts the images to conceal
the actual capabilities of U.S. satellites. Jeffrey Richelson, America's Secret Eyes in
Space: The U.S. Keyhole Spy Satellite Program 153 (1990).
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breach of a treaty even when that breach has been detected.1 3
Sometimes nations will simply be unwilling to expend the resources necessary to generate and coordinate any response to a
detected breach.
Third, the requirement of necessity means that, in some cases,
the wrongdoer will escape harm entirely. Otherwise, the necessity "requirement" would not actually require anything. When
a breaching party appears likely to return to the compliance fold
without the prodding of sanctions, the necessity requirement
bars remediation efforts.' Although the relevant breach thereby results in no costs for the breacher, the victim(s) may still suffer losses as a result of the breach. This sort of breach will
therefore be under-deterred-indeed, will be completely undeterred if the necessity requirement is taken seriously-because
the breacher's infliction of harm goes completely unpunished.
While the rule of necessity focuses on whether remediation is
necessary to deter continuation of the particular breach at issue,
optimal-deterrence theory takes a somewhat broader view.
That theory implies that the relevant rules should deter separate
but similar breaches by presenting the potential breacher with
the knowledge that a breach will lead to sanctions according to
the harm thereby caused, not merely according to whether the
breacher is willing to cease his wrongdoing in the short run.
Fourth, the similarity-in-kind component of the proportionality test will, in a manner similar to the necessity requirement,
bar a retaliatory response to a breach on some occasions.75 On
some occasions, no sufficiently similar response will exist, and so
a breach will go unpunished. The lack of punishment will lead
to underdeterrence.
Fifth, some treaties require the victim of a breach to exhaust
dispute-resolution procedures set forth in the treaty before
levying any other sanctions against the breacher.'76 In such
See supra text accompanying notes 84-88.
See supra text accompanying notes 147-150.
175 See supra text accompanying notes 153-154.
176 For example, the Dispute Settlement Understanding to the World Trade Organization Agreement requires states to pursue the dispute settlement process before
any sanctions can be imposed for an alleged violation. See supra note 34; see also
Aceves, supra note 34, at 436-43 (discussing the WTO's Dispute Settlement Agreement in detail).
173
174
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treaty regimes, the wrongdoer is likely to face sanctions only after a significant delay. Such a delay will, so long as the wrongdoer discounts the future, have an effect similar to that of the
necessity requirement. The impact of the sanctions upon the
wrongdoer will be less than the harm visited upon the victim of
the treaty breach by the wrongdoer, because a harm suffered in
the future (from the delayed sanction) will play a lesser role in
decisionmaking than the same harm suffered immediately."
Unless the rules of proportionality allow the responding party to
increase the magnitude of the delayed response in accordance
with the delay, the result will be underdeterrence.
Sixth, the rarity of compensatory damages or other means of
actually compensating the victim of a breach for its loss means
that victims have a significantly reduced incentive to pursue responses to a breach.' If compensation is available, then the victim of a breach receives that compensation as its reward for pursuing the breacher. Nations do sometimes receive compensation in a suit or settlement in the international legal system, or
seize the breacher's monetary assets located in the victim nation, or capture property of the breacher in naval or military
raids."' More typically, however, there is no such compensation
available for breach of a treaty.1" For purposes of deterrence,
the fact that the victim of a breach does not receive compensation for the harm would not actually matter so long as the
breacher somehow paid the relevant costs.' Some centralized
"n See generally Edith Stokey & Richard Zeckhauser, A Primer for Policy Analysis
160-65 (1978) (discussing discounting of future).
,71In the European Union, private individuals may bring actions against member
states in national courts for violations of E.U. legislation. This allows individuals to
monitor compliance with E.U. obligations and seek enforcement of such obligations.
See Carl Otto Lenz, The Role and Mechanism of the Preliminary Ruling Procedure,
18 Fordham Int'l L.J. 388 (1994).
17
For example, following the Iranian seizure of U.S. diplomatic personnel from
the U.S. Embassy in Tehran, the United States froze approximately $12 billion in
Iranian assets that were located in U.S. banks or in the possession of U.S. corporations, whether located in the United States or abroad. Carter & Trimble, supra note
1, at 93-96.
,80See supra notes 138-141 and accompanying text.
- For a comparable analysis of punitive damages in the realm of domestic contract
law, see, e.g., Richard Epstein, Charles 0. Gregory & Harry Kalven, Jr., Cases and
Materials on Torts 800-07 (4th ed. 1984) (noting deterrent and punishment rationales
for punitive as compared to compensatory damages); Michael Rustad & Thomas
Koenig, The Historical Continuity of Punitive Damage Awards: Reforming the Tort
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international prosecutor could serve this role just as well as individual nations. There is no such entity, however. For purposes of encouraging victims of a breach to pursue the measures
that lead to the breacher's payment of costs, then, the lack of
availability of compensation is relevant. The victims of the
breach are the only entities at hand in the current international
system to sanction the breacher, while the unavailability of direct rewards from levying sanctions gives the victims of a breach
a lessened incentive to pursue those responses. If coercion is
employed by the victim, for example, the relevant military operation will certainly cost treasure and often blood. If the cessation of otherwise binding legal obligations is the chosen unilateral remedy, then the sanctioning nation will of course lose
whatever benefits encouraged it to undertake the (about-to-beterminated) arrangement in the first place. Trade sanctions, for
example, harm not only the sanctioned nation, but also merchants in the victim nation who are thereby prohibited from undertaking transactions that they previously found beneficial.
Assuming that entry into a free-trade agreement, for example,
indicates where the "national interest" lies, sanctions would also
harm the sanctioning nation as a whole. The possibility of
counter-countermeasures by the breaching nation against the
victim nation (although illegal) may also cost a victim nation
contemplating a response to a treaty breach. All these various
costs are, like legal fees in the domestic context, a price that the
sanctioning nation must pay to vindicate its rights. If uncompensated, all these various costs will discourage a victim nation
from pursuing sanctions and thus will lower the expected costs
to a would-be violator of breaching a treaty.
There is one important qualification, however, to equating
the unavailability of compensation from the breacher to the victim with lessened incentives for the victim to pursue responses
to a breach. If the breach gives the victim the legal right to
abandon some of its legal obligations, then the victim will presumably choose to abandon those obligations that, within the
limits of necessity and proportionality, have resulted in the
greatest net costs to the victim. Suppose that a nation signs a
Reformers, 42 Am. U. L. Rev. 1269, 1304-26 (1993) (describing the contemporary
functions of punitive damages).
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treaty with the belief that it will receive significant benefits
therefrom, but discovers that the treaty is in reality an arrangement yielding it large costs and no benefits. Such a treaty would
be a prime candidate for abandonment in the event of an opportunity to legally abandon that treaty in response to another nation's breach of a different treaty. Such an abandonment would
effectively "compensate"-or at least provide some benefits to
the victim nation-as a result of pursuing its response.
3. The General Consistency of Remediation with a TransactionCost Analysis
The rules of remediation appear significantly inconsistent
with the implications of rationalist IR theory for institutional
design. Before proceeding to an alternative "misperceptionsspiral" view of remediation, however, one should note the broad
consistency of the overall scheme of remediation with a transaction-cost rationale.
The rules of remediation involve largely unilateral measures
rather than multilateral measures such as courts (which, after
all, require participation in the "transaction" by the responding
party, the breacher, and the court itself). In addition, the rules
of remediation provide a victim nation with a wide variety of
possible responses. The rules of remediation allow, but do not
much rely upon, court-ordered compensatory damages as the
means of remediation." A focus on such damages would obviously provide a set of rules more conceptually focused than the
sweeping and frequently vague law of state responsibility, which
must set forth formulations of rules that apply not only to compensatory damages but also to such variegated responses as
economic sanctions, military strikes, suspension of diplomatic
relations, and so forth.' In addition, as discussed in more detail
below, the award of compensatory damages provides a useful
incentive to the victim to pursue a remedy and thereby to sancta Anglo-American contract law, in contrast, favors compensatory damages as the
remedy for breach of contract over such alternatives as specific performance. See
Posner, supra note 161, at 106.
11 See generally Elisabeth Zoller, Peacetime Unilateral Remedies: An Analysis of
Countermeasures 67-75 (1984) (surveying the various legitimate self-help responses
available for breach of international legal obligations).
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tion the wrongdoer, an outcome in the interest of the community as a whole."
Nonetheless, in the absence of a highly developed court system, an enforceable judgment for money will be very costly to
obtain.'85 Likewise, the difficulties (discussed above) of monetizing the harm from a breach are also, in a sense, the equivalent
of high transaction costs.'86 The award of compensatory damages involves the participation of multiple parties (as disputants
and dispute-resolvers) and thus involves higher transaction
costs. The availability through the law of state responsibility of
a wide variety of means of unilateral remediation, in contrast,
gives the victim the opportunity to choose a response to breach
that it can implement without the need to incur the high transaction costs involved in pursuing compensatory damages. Indeed,
to the degree that the relevant measures are truly unilateral,
there need be no transaction costs flowing from a national government's decision to implement its response." To the extent
that even a unilateral response must await the pursuit of negotiations," however, there will be some transaction costs in114
See supra text page 89.
See supra text accompanying notes 140-141. As noted by the Restatement
(Third):
[r]emedies in international law are not as developed as remedies in the
domestic law of most states, but both the principles and the modes of relief are
similar. A state that has violated an international obligation is required to
terminate the wrongful conduct and, in appropriate cases, to provide
restitution, to restore the status quo ante, to render specific performance of an
undertaking, or to pay compensation.
Restatement (Third), supra note 21, pt. IX intro, note, at 338 (citing § 901 of the Restatement (Third)).
186 For a broader analysis of the application of transaction cost economics to the
study of international law, see William J. Aceves, The Economic Analysis of International Law: Transaction Cost Economics and the Concept of State Practice, 17 U. Pa.
J. Int'l Econ. L. 995 (1996).
'87Note, however, that a nation must still incur some transaction costs in formulating a response, whether as a result of debates internal to the government or of the
relevant interactions with its polity more generally. A "unilateral" response may be
unilateral from the perspective of other nations, but even a "unilateral" response involves the coordination of a multiplicity of domestic actors. See supra text accompanying note 84; see also supra note 8 (describing liberalism and its focus on domestic
politics in relation to the democratic peace). Note also that a nation undertaking a
"unilateral" response may actually incur transaction costs in coordinating its response
with other victims of the breach.
'" See supra text accompanying notes 147-150.
18S
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volved in those negotiations (although a nation seeking compensatory damages must, of course, incur such costs as well).
This analysis simply implies that compensatory damages
would be a poor choice for the focus of remediation efforts, and
that failure of the rules of remediation to adopt such a focus
makes them consistent with rationalist IR theory in a broad
sense. Many transaction-cost barriers to obtaining compensatory damages exist, while such barriers may be significantly
lower with respect to other remediation measures. This broad
consistency is encouraging, but the transaction-cost framework
does not seem likely to prove especially useful in analyzing such
principles as proportionality and necessity. Because the particular rules of remediation are inconsistent with optimaldeterrence theory, however, the Article proceeds now to an
analysis of "misperceptions-spiral" theory and its implications
for the rules of remediation.
C. Rescuing Remediation?:Spirals of Misperception
The previous Section has argued that the fit between the predictions of a rational-design hypothesis based on deterrence
theory and the rules of remediation in international law is a
poor one. Essentially, the rule of proportionality limits the
remediation response to the imposition of a harm equal to the
harm flowing from the breach, while rationalist IR theory based
on notions of optimal deterrence would argue that, in light of
the unlikelihood that each breach will lead to a sanction, international law should routinely allow greatly disproportionate responses to breach.
With an eye towards explaining areas of potentially close fit
between rationalist IR theory and the rules of remediation, this
Section compares those rules with a branch of (somewhat) rationalist IR theory that hypothesizes a systemic tendency by nations to overestimate the negative effects of actions taken by
presumed adversaries. The implication of such a view is that a
small negative perturbation in the system, such as the minor
breach of a treaty, can grow to have profound negative effects
through a "spiral of misperceptions." The sensitivity of nations
in this situation can lead to a rational role for rules of remedia-
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tion that would be underdeterrent in an environment without
misperception.
1. The Misperceptions-SpiralTheory
"Positive feedback" is synonymous with praise in many circles,189 but its cybernetic meaning is more neutral." 0 Positive
feedback in its more technical sense expresses a relationship between two variables in which an increase in the value of one
variable in the system leads to an increase in the value of the
other variable."" If the increase in the second variable's value in
turn feeds back into an increase in the value of the first variable,
then a "positive feedback loop" exists."9 Placing a live microphone next to a powered speaker will quickly lead to an earpiercing screech through a fast-acting, positive feedback loop.
Nearby listeners are unlikely to praise the results.
One prominent IR theorist concerned with national security
issues has focused on the likelihood and implications of positive-feedback loops in international relations, especially those
relating to how nations perceive arguably threatening behavior
by other nations. 93 Suppose that Russia conducts a military ex189Cf. James C. Wetherbe, Systems Analysis and Design 23 (1988) ("Praise is good
feedback; criticism is good feedback if applied sensitively, but is bad feedback if applied insensitively.").
t9 Cybernetics analyzes control and communications mechanisms in machines and
living organisms. The seminal work is Norbert Wiener, Cybernetics: Or Control and
Communication in the Animal and the Machine (2d ed. 1961).
191 See Barry Clemson, Cybernetics 22-23 (1991). See generally Donald L. DeAngelis, Positive Feedbacks in Natural Systems (1986); Wetherbe, supra note 189
(discussing the power of positive feedback with a quasi-historical example).
"I For a non-technical introduction to the notion of (negative) feedback followed
by a technical treatment of a wide variety of types of feedback and oscillations, see
Wiener, supra note 190, at 95-115.
193 See Jervis, Misperception, supra note 135, at 62-67. According to Jervis,
The roots of what can be called the spiral model reach to the anarchic
setting of international relations. The underlying problem lies neither in
limitations on rationality imposed by human psychology nor in a flaw in human
nature, but in a correct appreciation of the consequences of living in a
Hobbesian state of nature. In such a world without a sovereign, each state is
protected only by its own strength. Furthermore, statesmen realize that, even if
others currently harbor no aggressive designs, there is nothing to guarantee
that they will not later develop them....
:he lack of a sovereign in international politics permits wars to occur and
makes security expensive. More far-reaching complications are created by the
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ercise in the Black Sea as a training exercise designed to maintain the general level of readiness among its sailors, but that
Turkey misperceives this benign action as a threat to it. Turkey
then conducts a training exercise of its own in order to respond
to the perceived Russian threat, which the Russians in turn misperceive as a hostile action directed towards Russia. The Russians then add extensive naval aviation assets to their next
round of training exercises (to ensure that their own forces are
properly coordinated in the face of the new Turkish threat)
leading the Turks to do likewise in their own next round of maneuvers, and so forth."' A "spiral of misperceptions" can develop in which the outcome is crisis or even war, despite the fact
that at the bottom of the spiral neither nation had any desire to
harm the other.95 A resulting war may not necessarily be
"accidental," and may even be "intended" at the time that war
actually starts, but the parties did not begin the process with any
hostile intentions towards one another.
2. Rules of Remediation and the Spiral of Misperceptions
In an environment in which nations systematically overestimate the threat to them from the actions of others, legal rules
that encourage responses equal to the perceived threat-let
alone disproportionate responses-are dangerous. The victims
fact that most means of self-protection simultaneously menace others.
Id. at 62-63 (footnotes omitted); see also Robert Jervis, Cooperation Under the Security Dilemma, 30 World Pol. 167, 170-86 (1978) (arguing that cooperation in an anarchic international system, as demonstrated by the Prisoner's Dilemma, only results
when states perceive little or no threat of defection).
'4 For example, Jervis quotes Lord Grey, the British Foreign Secretary before
World War I:
The increase of armaments, that is intended in each nation to produce
consciousness of strength, and a sense of security, does not produce these
effects. On the contrary, it produces a consciousness of the strength of other
nations and a sense of fear. Fear begets suspicion and distrust and evil
imaginings of all sorts, till each Government feels it would be criminal and a
betrayal of its own country not to take every precaution, while every Government regards every precaution of every other Government as evidence of
hostile intent.
Jervis, Misperception, supra note 135, at 65 (quoting 1 Sir Edward Grey, TwentyFive Years 92 (1925)).
-' Cf. Paul Bracken, The Command and Control of Nuclear Forces (1983)
(including analysis of technical constraints and incentives to delegate weaponsrelease authority).
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of an initial breach will perceive the effects of the breach as
larger than those effects actually are. Faced with a standard that
on its face authorizes those victims to make an exactly equivalent response, the response will, owing to the misperceptions of
the victim nations, actually be greater than the harm from the
breach. This misperception will, if the object of the response
considers itself entitled to some counter-response, feed back
onto the victim nations with a (still larger) counter-response.
In the face of such misperception, rules that on their face
authorize only something less than a fully equivalent response
will be the only way to achieve optimal deterrence."' When a
breach occurs and creates some harm X, the victims will misperceive the impact as some greater harm Y, and if allowed a response that the victim sees as equivalent, will inflict that greater
harm on the breacher, who in turn will see the impact of the
measures of remediation as some still-greater harm Z. If the final perception of harm Z is instead to be equivalent to Xwhich is the proper equality in terms of influencing the behavior
of the breacher-then the rules of remediation should authorize
only some response W that is of lesser magnitude than the actual harm. The necessity and proportionality tests, in light of
the other factors contributing to the unlikelihood that a response will be certain, effectively serve the same function as allowing only some response W equivalent to X, the harm actually
caused by the initial breach.
The misperceptions-spiral theory nonetheless has a flaw or
two. First, problems in international relations occur all the time
without leading to war. If the stories of misperception are true,
Downs, Rocke and Siverson noted:
The ideologies of decision makers and the experiences they have in
operating in the international system inevitably color the way they process
information as well as their vision of what arms race game they are engaged in.
Whenever there is uncertainty about the likely impact of an action or the
significance of another state's behavior-which is almost all the time-these
factors play a major role in determining how they will assess the situation.
196 As
Axelrod has suggested that retaliation in Tit-for-Tat should be less than 1 in
order to alleviate the consequences of a single defection, which under Tit-forTat with perfect information and control can lead to endless rounds of echoing
or mutual defection.
George W. Downs et al., Arms Races and Cooperation, 38 World Pol. 118, 136-41
(1985) (footnotes omitted).
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then something else must have intervened-some negative
feedback in the system-to halt what would otherwise be an inevitable escalation. The theory thus seems incomplete as a general predictor of international behavior." In addition, the legal
system as currently constructed has a built-in negative-feedback
mechanism. The breaching party has no right to retaliate
against the victim for the latter's response. The spiral of misperception should then cease, at least if the rules are obeyed.
The application of the misperceptions-spiral theory to the
rules of remediation also implies a certain selectivity about just
where a nation's misperceptions occur. In this case, as in any
case, nations must agree to a rule. Such agreement is how the
rules of international law are formulated, not by the fiat of some
supra-national entity. In this case, nations would need to agree
to a rule that appears quite underdeterrent, on the grounds that
the rule will actually function to provide proper deterrence.
The same nations that will be plagued with future misperceptions, therefore, must see ahead accurately to those future misperceptions. Such a complex clarity of vision-a currently accurate self-perception of future misperception-is possible, of
course. Nations may be able to reflect dispassionately in advance of a particular breach, but not once the breach occursjust as smokers may want to throw out their cigarettes at the beginning of an effort to quit because they will smoke them later
otherwise. Still, one should at least note the tension in the necessary intertemporal perceptions underlying the notion that na197See, e.g., Jack S. Levy, The Offensive/Defensive Balance of Military Technol-
ogy: A Theoretical and Historical Analysis, 28 Int'l Stud. Q. 219 (1984) (including
analysis of technical constraints and incentives to delegate weapons-release authority); Jack S. Levy, Misperception and the Causes of War: Theoretical Linkages and
Analytical Problems, 36 World Pol. 76, 98-99 (1983) (identifying certain types of misperceptions that are more likely to lead to war). According to Levy:
Although numerous scholars have concluded that misperceptions have had an
important role in the processes leading to numerous wars, it is not an easy task
to define exactly what a misperception is, determine what historical phenomena should or should not be classified as misperceptions, or to evaluate the
causal impact of misperceptions relative to that of other variables.
Jack S. Levy, The Causes of War: A Review of Theories and Evidence, in 1 Behavior,
Society, and Nuclear War, supra note 158, at 209, 285. Indeed, as Lebow has noted
on the concept of misperception, "nobody has been able to provide a clear, empiri-
cally useful and generally accepted definition of the concept." Lebow, supra note 135,
at 90.
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tions will deliberately choose rules of remediation that would be
underdeterrent when applied to nations with consistent and accurate perception.
One should also note that this is an Article concerned with
"rationalist" IR theory, yet the misperceptions-spiral theory is
what one might at best call "semi-rational." In the misperceptions-spiral model, the nations involved in international relations are incapable of seeing reality clearly. Those nations see
greater harm and hostility when little or no hostility actually exists. This may be an accurate characterization of the real world,
but it is not the rational world of foresight and objectivity that
tends to characterize rationalist IR theory more generally.
III. THE RELATIONSHIP BETWEEN RULES OF RELEASE AND
RULES OF REMEDIATION
This Part considers the interactions between rules of release
and rules of remediation. Neither Article 60 of the Vienna
Convention nor the less authoritative codification of the law of
state responsibility expressly mentions any relationship between
the availability of release and the availability of remediation.
The principles of necessity and proportionality in the law of
state responsibility imply, however, that remediation by a nation
is less likely to be permitted if that nation has already availed itself of a release option. There would appear to be no such constraint in the other direction: The rules of release do not seem to
make release any less likely to be available because a nation has
availed (or will avail) itself of measures of remediation. Certainly the Vienna Convention, a formal treaty, itself imposes no
requirement of necessity or proportionality on exercise of the
release option. The Vienna Convention also lacks any language
mentioning any interaction between release and remediation,
while any language in the law of state responsibility that might
constrain Article 60 is vague and (as with most of the rest of the
law of state responsibility) not yet embodied in any formal
treaty. Section A describes these rules in more detail.
A comparison of the rules of release and of remediation
against the backdrop of the various theories used in previous
Sections is the topic of Section B. Rationalist IR theories concerning the interrelated concepts of transaction costs, public
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goods, collective action, and the IPD were prominent in the
analysis of the rules of release. Rationalist IR theories concerning deterrence theory and the "spiral of misperceptions"
were both prominent (although of quite different degrees of explanatory power) in the analysis of the rules of remediation.
Examining each set of rules in light of the theories initially
applied to the other set of rules yields some further insights into
each set of rules individually, and into the two sets of rules
taken together. The rules of release are not consistent with the
principles of necessity and proportionality laid out in the rules
of remediation, nor are the rules of release consistent with the
misperceptions-spiral theory used to justify underdeterrent rules
of remediation. The failure to constrain rules of release in accord with the principles of deterrence theory also creates a potential problem. Simultaneously, however, the availability of a
release option (constrained or not) may make up for some of
the problems of underdeterrence (assuming that one remains
unconvinced of the general utility of the misperceptions-spiral
theory) that would otherwise result from the constraints placed
upon remediation by the law of state responsibility.
The theories used in examining the rules of release, like those
rules themselves, are sequential and dichotomous; the theories
used in examining the rules of remediation, as with those rules,
are simultaneous and continuous. A linkage of dichotomies and
continuities suggests a relatively unified treatment of remediation and release as (jointly exhaustive) examples of rules governing non-negotiated responses to breach of a treaty, but the
final portion of this Part argues that rationalist IR theory is not
quite up to the suggestion, at least in its current state.
A. The Relationship between the Rules of Release and the Rules
of Remediation in Treaty Law
The law of treaties includes within its ambit the rules governing the release of a party from its obligations under a breached
treaty. The law of state responsibility includes within its ambit
the rules governing the other responses to a breach of a treaty"remediation," as this Article calls it-that a party may undertake. The Vienna Convention and the law of state responsibility
100
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are two textually distinct bodies of law.'98 The Vienna Convention governs only treaties (and in fact, does not even govern
every treaty)."' The law of state responsibility, not yet codified
in a formal treaty, governs responses to breach of any international obligation, including not only treaty obligations but customary law.'
The two previous Parts of this Article maintained a distinction between release and remediation, and with it the parallel
distinction of the law of treaties and the law of state responsibility. Part I examined the rules of release from the law of trea19s Indeed, there is currently no authoritative text setting forth the law of state responsibility at all.
1 Article 3 of the Vienna Convention provides:
The fact that the present Convention does not apply to international
agreements concluded between States and other subjects of internationallaw
[e.g., international organizations such as the United Nations] or between such
other subjects of international law, or to internationalagreements not in written
form, shall not affect:
(a) The legal force of such agreements;
(b) The application to them of any of the rules set forth in the present
Convention to which they would be subject under international law
independently of the Convention;
(c) The application of the Convention to the relations of States as between
themselves under international agreements to which other subjects of
international law are also parties.
Vienna Convention, supra note 15, art. 3, at 333-34 (emphasis added).
According to the Restatement (Third), the provisions concerning the material
breach of an international agreement do "not exclude other remedies for breach, for
example, a claim for damages by an aggrieved party against the offending party, or
resort to arbitration as provided in the agreement in question or in some other
agreement between the parties." Restatement (Third), supra note 21, § 335 cmt. e, at
217 (reference omitted).
The Introductory Note to Part IX of the Restatement (Third), which concerns
remedies for violations of international law, states:
A state that has violated an international obligation is required to terminate
the wrongful conduct and, in appropriate cases, to provide restitution, to
restore the status quo ante, to render specific performance of an undertaking,
or to pay compensation. Acknowledgment of the violation and an apology are
also a common remedy. For most injuries restoration is the preferred remedy,
with compensation as an alternative. In case of a violation of an international
agreement, the injured party may suspend or terminate the agreement or seek
specific performance, money damages, or other redress. For some treaty obligations special remedies may be provided, e.g., withdrawal of equivalent concessions for violations of GATT obligations. In different circumstances different
remedies may be pursued simultaneously or successively. Legal and political
remedies may be pursued at the same time.
Id. pt. IX, intro, note, at 338 (references omitted).
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ties; Part II examined the rules of remediation from the law of
state responsibility. This Part examines the doctrinal and theoretical interplay of the two bodies of law that govern the legally
permissible responses to breach of a treaty.
One can imagine two kinds of relationships between doctrine
on the rules of release and on the rules of remediation. The
availability of remediation could legally constrain (or facilitate)
the availability of release, or the availability of release could legally constrain (or facilitate) the availability of remediation. As
it happens, the availability of remediation appears to have no effect on the availability of release, while the availability of release does appear to constrain the availability of remediation.
1. The (Non-)Effect of the Availability of Remediation upon the
Availability of Release
Article 60 of the Vienna Convention makes no explicit reference to the law of state responsibility, nor to the doctrines of
necessity or proportionality."' The standards of Article 60, as
we have seen above, are about the relationship between the
breached provision and the treaty itself and (for breaches of
multilateral agreements) about the effects of that breach on its
victims. The law of state responsibility, with its focus on the effects of the response upon the breacher, has a very different
emphasis. Necessity in the law of state responsibility focuses on
the availability of negotiations as an alternative to unilateral
remediation. Parties that question the validity of a treaty on the
procedural grounds provided by the Vienna Convention must in
fact use the default dispute-resolution procedures also set forth
therein. Although these procedures do involve various negotiations, they do not govern parties seeking to be relieved of their
treaty obligations because of the breach of another party. In
any event, even those dispute-resolution procedures applicable
to alleged procedural infirmities are not set forth as the exclusive means of redress or response that a party may seek in connection with its desire to treat its obligations as inoperable.'
20,
See Vienna Convention, supra note 15, art. 60, at 346.
202 Article
42 of the Vienna Convention provides:
1. The validity of a treaty or of the consent of a State to be bound by a treaty
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The Vienna Convention itself therefore gives no clue that a
party's ability to make use of the provisions of Article 60 depends somehow on meeting any tests except those set forth in
Article 60 itself. Nonetheless, one might wonder if the provisions of the law of state responsibility-and thus the requirements of necessity and proportionality-are somehow applicable to the law of treaties.
The answer to such wonderings, however, appears to be "no."
The examples in the Restatement (Third) concerning responses
to breach do not include suspension or termination of the
breached treaty. In addition, there is a general principle in international law that treaties are superior to customary law in determining the obligations of parties, at least when the treaty in
question is quite specific as to its obligations.' Such specificity
may be impeached only through the application of the present Convention.
2. The termination of a treaty, its denunciation or the withdrawal of a party,
may take place only as a result of the application of the provisions of the treaty
or of the present Convention. The same rule applies to suspension of the
operation of a treaty.
Id. at 342.
- Article 38(1) of the Statute of the International Court of Justice lists the principal sources of international law:
(a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting States;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
Statute of the International Court of Justice, art. 38, 1. According to Ian Brownlie:
The first question which arises is whether paragraph 1 creates a hierarchy of
sources. They are not stated to represent a hierarchy, but the draftsmen
intended to give an order and in one draft the word "successively" appeared.
In practice the Court may be expected to observe the order in which they
appear: (a) and (b) are obviously the important sources, and the priority of (a)
is explicable by the fact that this refers to a source of mutual obligations of the
parties. Source (a) is thus not primarily a source of rules of general application,
although treaties may provide evidence of the formation of custom.
Ian Brownlie, Principles of Public International Law 3-4 (4th ed. 1990) (footnote
omitted). However, Brownlie goes on to add that:
In general Article 38 does not rest upon a distinction between formal and
material sources, and a system of priority of application depends simply on the
order (a) to (d), and the reference to subsidiary means. Moreover, it is
probably unwise to think in terms of hierarchy dictated by the order (a) to (d)
in all cases. Source (a) relates to obligations in any case; and presumably a
treaty contrary to a custom or to a general principle part of the jus cogens
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does exist with respect to the rules of release in Article 60 of the
Vienna Convention, as we have seen. More generally, the Vienna Convention is a formal treaty that explicitly establishes the
criteria for determining the availability of the release option,
while the laws of state responsibility are simply customary law
that do not directly address the topic of release.
In addition, the law of treaties sets forth a scheme that is
clearly inconsistent, at least in spirit, with the law of state responsibility. First, Article 60 refrains from setting forth any necessity requirement like the one mentioned in the law of state
responsibility. More directly, the rules of release in Article 60
fly in the face of the similarity-of-magnitude component of the
proportionality requirement. As discussed above, the smallest
breach of an essential provision of a bilateral treaty permits the
victim to terminate instantaneously each and every one of its responsibilities under the entire treaty.' Such a response clearly
satisfies the similarity-of-kind requirement of the proportionality test-the terminated obligations are of exactly the same type
as the breached obligations, obviously enough-but it seems just
as obviously disproportionate in terms of the magnitude of the
breach. Common sense and established principles of international legal interpretation indicate that such a specific contradiction of the terms of the law of state responsibility implies that
the parties to the Vienna Convention wished the later, more
formalized set of obligations, to govern in the case of the rules
of release. This is a much more plausible interpretation than
that those parties were indulging in some kind of silent subordination of the Vienna Convention to the broad and uncodified
rules of the law of state responsibility. In sum, therefore, there
would appear to be no relationship between release and remediation that constrains Article 60's rules of release in light of the
rules or principles of the law of state responsibility on remediation.
would be void or voidable. Again, the interpretation of a treaty may involve
resort to general principles of law or of international law. A treaty may be
displaced or amended by a subsequent custom, where such effects are
recognized by the subsequent conduct of the parties.
Id. at 4 (footnotes omitted). The Vienna Convention is relatively new, however, so
little such displacement or amendment seems likely to have occurred.
I' See supra text accompanying notes 17-22.
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2. The Effect of the Availability of Release upon the Availability
of Remediation
The rules of remediation do not appear to constrain the availability or exercise of the release option. If we examine whether
the rules of release might constrain the availability of remediation, however, we obtain a somewhat different answer. As with
the Vienna Convention and the rules of necessity and proportionality, a review of the relevant portions of the law of state responsibility reveals no explicit mention of the availability of release. Nonetheless, by its own terms, the rules of remediation
do contain an explicit and general principle-necessity-that
seems to impose some constraint upon remediation in light of
the exercise, or even the availability of, a release option. In addition, the proportionality principle, broadly interpreted, might
also constrain remediation in the wake of an actual exercise of a
release option.
As discussed above, the necessity principle prevents the victim of a breach from taking advantage of a particular means of
remediation if some alternative approach will result either in a
return to compliance by the (former) breacher or in compensation for the victim.'5 This principle appears to govern not only
the choice of one means of remediation from among the large
menu of options, but also to govern the availability of any
remediation at all vice the use of non-remediation measures.
The most prominent alternative to remediation may well be negotiation, but there is no reason to think that a doctrine that requires consideration of negotiated solutions would not also take
into account the possibility that the exercise of a release option
could induce the breacher to return to adherence with its treaty
obligations.' The necessity principle might therefore bar remediation in light of the availability of release, just as that principle
can bar remediation in light of the availability of negotiation.
M See supra text accompanying notes 142-150.
0
The Restatement (Third) recognizes that:
Most disputes involving a claim of violation of international law are
resolved by negotiation. The general expectation of states that legal
obligations will be observed tends to promote such resolution. If negotiations
do not result in a settlement, there may be resort to a third party for assistance,
an advisory opinion, or binding decision.
Restatement (Third), supra note 21, pt. IX, intro, note, at 338.
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Application of the proportionality principle to constrain
remediation in light of release is a somewhat trickier business.
First, one should note that proportionality appears in practicethough not necessarily in the abstract-to focus on the effects of
the particular means of remediation chosen, not on the effects
of all possible measures (including non-remediative measures
such as negotiation or release) taken in response to a breach.
Negotiations, of course, rarely impose much in the way of harmful effects on the breacher, so the fact that the rules of proportionality tend to focus on the harm resulting from the unilateral
response may not by itself mean that significant harm from nonremediation measures is irrelevant in determining proportionality. Perhaps the rules of proportionality, therefore, should
apply in their magnitude-of-response aspect to the impact of all
responses (remediation and non-remediation) to breach. The
impact of release on remediation can present this issue squarely:
Release is not a unilateral response but can inflict substantial
harm on a breacher. Unfortunately, there is little explicit discussion in the relevant commentary of courts and publicists
about whether the effects from exercise of a release option
should be included in the overall effects of remediation for purposes of determining its proportionality. On the whole, however, the analyst of the relationship between proportionality and
the exercise of a release option should probably conclude that
the availability of legal remediation depends in part upon the
unavailability of-or at least the failure to exercise-the release
option.'
B. RationalistIR Theory and the Relationship between the Rules
of Release and the Rules of Remediation
As in previous Parts, this Section seeks to explain the rules
governing the topic at hand (i.e., the relationship vel non between rules of release and rules of remediation) in terms of their
207Note that the application of the necessity principle may constrain remediation in
light simply of the availability of release, while proportionality should constrain
remediation only in light of the actual exercise of the release option. Necessity, after
all, focuses on what responses (besides the response actively under analysis) might
accomplish, while proportionality focuses on what the aggregate of responses will accomplish if employed.
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consistency with rationalist IR theory. The simultaneous consideration of release and remediation, however, can also lead to
other topics of theoretical interest, such as an inquiry into
whether all the various sub-theories of rationalist IR theory
raised at one point or another in the previous two Parts can coexist.
Section 1 examines how one might explain the doctrinal relationships between release and remediation, while Section 2 examines the broader theoretical issues that one can explore by
simultaneously considering release and remediation.
1. Using RationalistIR Theory to Explain the Relationship
between the Rules of Release and Remediation
The rules of treaty law appear to constrain measures of remediation when a release option is available, but not to constrain
exercise of the release option when remediation is available. Is
this one-way restraint between release and remediation sensible
under rationalist IR theory?
In terms of optimal-deterrence theory, the answer is "no."
The exercise of a release option can impose a harm upon the
breacher. So, too, can the employment of remediation measures
against the breacher. The imposition of the optimal sanction
against the breacher should include consideration of both kinds
of costs. Suppose, for example, that the victim of a breach exercises a release option in a situation where detection is virtually
certain, and where necessary and proportional measures of
remediation have already led to an imposition of harm upon the
breacher equal to the harm caused by the breach. The availability of a release option in such circumstances (assuming that
the exercise of such an option will further harm the breacher)
will deter some efficient treaty breaches. The harm imposed
upon the breacher will exceed the harm from the breach, and
that excessive harm will sometimes prevent an efficient treaty
breach. The optimal sanction in a situation where the likelihood
of detecting and sanctioning the breacher approaches one is a
sanction imposing harms equal to the harm from the breach, not
some greater harm.
Of course, the lack of constraints upon the use of release despite the availability of remediation can have beneficial effects
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107
if, as was argued in Part II of this Article, the rules of remediation typically under-deter treaty breaches. A breaching party
should face, in response to its potential breach, a combination of
the likelihood and the magnitude of harm from breach that is
equal to the harm to the victim from the breach. If the likelihood of actually levying sanctions is significantly less than one,
then the rules of remediation in treaty law are quite unlikely to
lead to the optimal outcome if only remediation is available as
an option. Because of the application of the rules of proportionality and necessity, and in light of the difficulties of detecting many treaty violations and of encouraging victims to pursue
remediation when such pursuit is unlikely to lead to full compensation, a potential breacher is likely to face an expected loss
from its breach much less than the harm likely to be visited by
the breach upon its victims.'
Release also imposes a harm upon the breaching party-by
depriving that party of the benefits that the breacher would otherwise accrue from the continuing cooperation of the victims of
the breach. Unless the breacher somehow considers harm from
release as intrinsically different from the harm to the breacher
flowing from measures of remediation, the breacher will include
both harms in its calculations when contemplating its breach.
The combination of harm to the breacher from release and
harm to the breacher from the remedial response therefore
could equal the harm to the victim(s) from the breach when
remediation alone would not lead to this (optimal) result. The
simultaneous availability of release and remediation would thus
be beneficial.
The lack of constraints on the release option as a result of
available remediation may therefore be useful in a system where
the rules of remediation seem likely to be underdeterrent. So
long as the rules of release and remediation do not impose twoway constraints on their employment, however, one can hardly
be sure that this will be the result. Without two-way constraints
on release and remediation, no legal rule seeks to ensure that
either one of the particular situations discussed above-overdeterrence or optimal deterrence-will prevail. The desired
- One should note that the example in the previous paragraph made a contrary assumption about the likelihood of detection and punishment.
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coincidence between harm from the breach and (probabilityweighted) harm to the breacher will be just that-a coincidence.
The lack of constraints on release as a result of available remediation, therefore, implies a lack of consistency between the
rules of international law and the predictions of the rationaldesign hypothesis as interpreted through deterrence theory.
One practice-oriented argument encourages a bit more optimism about the ability of the one-way limit of remediation upon
release to lead to sensible results, however. Through the application of the rule of necessity, the rules of remediation constrain
the application of measures of remediation that occur in the
wake of the exercise of a release option.' The rule of necessity
also constrains the application of measures of remediation, so
long as other available measures, such as negotiations or the exercise of a release option, hold out a significant promise of convincing the breacher to return to the fold of compliance or to
render a remedy to the victims of the breach. Release, in contrast, is available immediately and without limitations (other
than those contained in Article 60 itself as to the materiality of
the breach and the additional criteria necessary to obtain a release option respecting a multilateral obligation). 0 Release as a
response to breach is thus unconstrained and immediately available, while remediation is constrained and typically not immediately available as a response to a breach.
One can thus imagine that, if release is an attractive option
and if the process of negotiations concerning the breach are
time-consuming, then the exercise of the release option will precede the availability of measures of remediation. If the exercise
of the release option does not by itself lead to over-deterrence,
then the staging of release and remediation together is unlikely
to lead to over-deterrence, despite the absence of constraints
upon release. The employment of remediation measures will
occur later, and the employment of those measures, through the
necessity and proportionality principles, will need to take into
account the effects of the exercise of the release option. Over-
210
See supra Part III.A.2.
See supra text accompanying notes 17-26.
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deterrence would therefore be unlikely even though release was
unconstrained by the availability of remediation. 11
2. The Theories of Release and Remediation
This Section makes two points. First, the misperceptionsspiral theory is incapable of simultaneously explaining the rules
of remediation and the rules of release. Second, the particular
sub-theories of rationalist IR theory that seem suitable for examining the rules of release do not seem to be naturally tailored
to an examination of the rules of remediation, and vice-versa.
a. Misperceptions-SpiralTheory and the Simultaneous
Considerationof the Rules of Release and of Remediation
Part II asserted that the misperceptions-spiral theory might
serve to explain the apparently underdeterrent effect of the
rules of remediation. An alternative explanation of that apparent underdeterrence, in light of the fact that both release and
remediation can harm the breacher, is that the rules of remediation create a "cushion" so that the combined effect of release
and remediation will not over-deter the breacher.
Looking across the rules of both release and remediation, one
should note that the implications of misperceptions-spiral theory are consistent with rules leading to objectively underdeterrent rules but are quite inconsistent with the rules of release. As
discussed above in the doctrinal context, the rules of material
breach allow the smallest breach of a bilateral treaty to give the
victim a release option with respect to all the obligations of that
treaty. A small breach will therefore legally give rise to a very
strong response-one might even call it disproportionate. This
amplification of the effects of a breach is precisely the opposite
of the sort of dampening that the misperceptions-spiral theory
encourages.
The fact that this point can be made concisely should not be
taken to mean that the point is unimportant. One difficulty with
social-science theories is a tendency towards non-negatability.
2,MOf course, the combination of release and remediation may still be underdeterrent if the rules of proportionality and necessity combine to prevent the use of
remediation as an additional means of imposing harms upon the breacher when release by itself is under-deterrent.
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Someone advances a theory; the theory has some inconsistencies with reality; the original theorist (or a disciple) patches up
the theory; the theory has some more inconsistencies with reality; some more patches are sewn on; and so forth. Theories wax
and wane in popularity, but never seem to disappear. Scientists
gave up on epicycles and phlogiston some time ago, but international lawyers still argue about Grotius and IR scholars still debate the stability of the balance of power. A simultaneous examination of the rules of release and remediation, however, at
least negates the proposition that the misperceptions-spiral theory can explain the international legal rules governing responses
to breach.
b. The GeneralDifficulties for RationalistJR Theory of
Simultaneous Considerationof the Rules of Release and of
Remediation
The rules of release are linear and mostly dichotomous. First,
one determines if the breach is material or not. If the breach is
material, one next determines whether the treaty is bilateral (in
which case a release option exists) or multilateral (in which case
the analysis continues). If the treaty is multilateral, one then determines if the breach meets any one of the additional criteria
necessary for a release option. The central rationalist IR theory
used to examine these rules in Part II-the insights surrounding
the IPD-is similarly linear and dichotomous. The iterations
unfold in strict sequence. Dichotomies are prominent-two
players at a time with two choices per player at each iteration
and two contending "strategies" governing the players' overall
approach.
The rules and theory concerned with remediation, in contrast,
tend to be simultaneous and continuous. The necessity and
proportionality requirements must be met simultaneously if a
remediation measure is to be legal. Contrast this to the release
option, where a finding of immateriality of breach with respect
to a multilateral agreement, for example, obviates the need for
any further analysis. Optimal-deterrence theory likewise involves the simultaneous consideration of factors-the probabil-
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ity and the magnitude of the sanction-without the ability for
one such factor to resolve the relevant test on its own. 2 '
There are obviously some fundamental challenges involved in
unifying these two theoretical frameworks-one dichotomous
and dynamic, the other continuous but static. The effort to
unify them nonetheless seems eminently desirable. In the actual
world of international law, one must at the very least acknowledge the two very different sorts of responses that the victim of
a breach can potentially employ. Release has its own set of
rules and its own calculations; remediation has a different set of
rules and calculations. Obviously, a third "response" is not only
possible but potentially quite relevant: no response at all (and
one might include in this category, just to keep things as simple
as possible, the response of pursuing a negotiated solution).
The simple dichotomy of actions in the typical presentation of
the IPD is thus incapable of handling even the most highly stylized version of a real-world phenomenon, i.e., the three broad
categories of international legal responses to breach of a treaty.
One may use the tools related to public-goods theory to do
some hammering away at the phenomenon of release considered on its own, and one may at least attempt to grasp remediation with the tongs of optimal-deterrence or misperceptionsspiral theory, but it proves impossible to examine release and
remediation simultaneously with the crude instruments that
comprise the entirety of the mainstream rationalist IR-theory
toolbox. Release, if abstracted into complete suspension of the
relevant treaty obligations, has a plausibly dichotomous character and is thus suitable for examination in the 2 x 2 IPD that
characterizes the rationalist IR-theory approach to international
cooperation. Remediation, if abstracted into a continuous
range of unilateral responses, has a plausibly continuous character and is thus suitable for examination in the world of precise
calibrations that constitutes deterrence theory and optimal sanctioning. Considering release and remediation together must involve at least a 2 x 3 IPD, however, and here rationalist IR theory currently has little to offer.
212 The misperceptions-spiral theory, however, is more linear, or at least more sequential. The spiral of misperceptions unfolds over time in a series of escalations and
misperceptions.
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IV. A NORMATIVE VIEW OF RATIONALIST IR THEORY
The first three Parts of this Article have taken a positivist
view of the utility of rationalist IR theory. Each Part has asked
whether the actual rules of international law are consistent with
the implications of rationalist IR theory for institutional design.
To the degree that the fit between rationalist IR theory and the
rules governing responses to breach is a close one, that close fit
validates the rational-design hypothesis; to the degree that such
a fit is poor, rationalist IR theory is also a poor predictor of international (legal) realities.
If theories had feelings, one imagines that rationalist IR theory would be disappointed, although not quite overburdened
with despair, at the findings of the first three Parts. Rationalist
IR theory does a good job of predicting the broad contours of
Article 60's rules of release, both in terms of the general availability of release as a legally sanctioned response to breach and
of the greater barriers that Article 60 erects between release
from multilateral, vice bilateral, obligations.
After this promising start, however, rationalist IR theory begins to struggle. The devil may or may not be in the details of
Article 60, but one certainly finds only limited evidence there of
rationalist IR theory. One must prod rationalist IR theory to
speak on the subject at all, and when it does, that theory implies
that the relationship of the breach to the payoffs of the parties
(whether the deprivation of benefits or, less persuasively, cost
savings) should dominate the analysis. The actual definition of
material breach, however, focuses on the relationship between
the breached provision and the breached treaty. An emphasis
on transaction costs can increase the closeness of the fit between
the actual definition of material breach and the predictions of
rationalist IR theory, but the same mixed success pervades the
analysis of the additional requirements imposed upon those
seeking release because of the breach of multilateral obligations
and the crudity of the simple dichotomy that Article 60 recognizes along the dimension of the number of parties to an agreement. The success is especially mixed with respect to these particulars of Article 60 because the transaction cost analysis useful
with respect to the definition of material breach fails to shore up
the rational-design hypothesis with respect to the additional
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multilateral-release criteria and the party-number dichotomy.
The analysis of the rules of remediation would bring little
sense of relief to a body of rationalist IR theory already likely to
feel a bit beleaguered by the analysis of the rules of release.
Optimal-deterrence theory produces a rather clear standard
against which to measure the fit of the actual rules of remediation with the rational-design hypothesis, but unfortunately the
fit between that theory and the rules of remediation proves to
be quite poor. Resort to a semi-rationalist misperceptions-spiral
theory is necessary to save face, but even this measure proves to
provide only temporary relief: An analysis of the relationship
between the rules of release and of remediation emphasizes that
the misperceptions-spiral theory is quite inconsistent with the
rules of release even if that theory can shore up the rationaldesign hypothesis with respect to the rules of remediation. That
the constraint involving rules of remediation and of release runs
in only one direction is also at least mild condemnation of the
rational-design hypothesis.
It is difficult to say whether these various shortcomings in rationalist IR theory's predictive power for international legal
rules governing responses to treaty breach are nails in the coffin
of rationalist IR theory, or merely a few flea bites to an elephant. An examination elsewhere of the consistency of law of
treaties with the notion of "iteration"-a notion crucial to the
IPD and thus to rationalist IR theory-produced results much
more pervasively favorable to the rational-design hypothesis. 13
Another article has argued that some methodological development of rationalist IR theory was in order, and that perhaps international law provides a sufficiently concrete testing ground
for IR theory to make further interdisciplinary explorations an
endeavor worth undertaking. In any event, social-science theories rarely die (or even fade away)-especially those grounded
in economics.
Whatever the implications of the Article's first three Parts for
rationalist IR theory, this Part takes a different tack. Previous
Parts have been positivist: Do the actual rules of international
law match up with the predictions of a particular (i.e., rationalist
1,3
See generally Setear, Iterative Perspective, supra note 3 (arguing that the con-
cept of iteration accurately predicts important aspects of the law of treaties).
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IR) theory? This Part is normativist: How can we make the actual rules of international law match up with the predictions of a
particular theory (i.e., rationalist IR theory)? After a discussion
of the plausibility and desirability of casting rationalist IR theory as a normative view, this Part describes the plethora of reform proposals that flow directly from the inconsistencies between rationalist IR theory and the actual rules of international
law described in the previous three Parts. "
A normative perspective drawn from rationalist IR theory requires at least some discussion of the possible advantages of
such a view. Those who make normative assertions from a
moral, philosophical, or political view often simply assume the
utility of their perspective (if they even see it as a distinctive
C"perspective" in the first place) or at least assume the obvious
desirability of promoting the values advanced thereby. At the
risk of setting higher standards for a normative perspective
based on rationalist IR theory than exist with respect to other
normative perspectives, however, the use of an essentially positivist theory for normative purposes would seem at least to require some exposition of the benefits of such an approach.
One such advantage is the clarity of the resulting normative
perspective. There is an underlying intellectual cohesiveness to
rationalist IR theory that stems from its focus on the rationalchoice approach. Actors respond to incentives; the construction
of the proper incentives to guide those actors is the focus of the
endeavor; the clear and apparently selfless aim of such an endeavor is to improve the overall functioning of the system.
There is a certain detachment to the perspective. The particular
norms promoted in the particular treaty that has been breached
This approach brings to mind an encounter that I once had with a complex computer graphics program designed by the aptly named Larry Painter. The program
behaved in a way that I considered unfriendly and arguably illogical. As with the
immediate accessibility of Marshal McLuhan to two characters debating the significance of his work in the movie Annie Hall, I was fortunate enough to have the creator of the controversial material close at hand. I brought the difficulty to Mr.
Painter's attention. "That's not a bug," he said, "it's a feature." Inconsistencies between rationalist IR theory and international legal rules are "bugs" from the positiv214
ist perspective, but are "features"-or at least provide grist for the mill of reform
proposals-from the normative perspective. See also Paul Simon, One Man's Ceiling
Is Another Man's Floor, on There Goes Rhymin' Simon (CBS Records 1979)
(describing complementary perspectives of apartment-house dwellers).
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are of limited relevance. The variations among nation-states
plays little role in the analysis. Historical factors are likewise
somewhat submerged.
The expressly theoretical aspect of rationalist IR theory also
has some collateral utility in normative analysis. A fair amount
of work has already been done in the area, and a good deal of
that work is quite self-conscious about specifying its assumptions and the links in the chain of reasoning that lead to its conclusions. Much of the other work in international law barely
specifies its assumptions at all, uses normative frameworks suitable only for the task at hand, or displays little in the way of
sensitivity to the peculiarities of the international vice domestic
legal process. Analysis of the international legal process occurs,
but often at a level of such detail that the larger implications are
lost. A normative perspective based on rationalist IR theory
therefore has enough desirable characteristics to make a sally
into a concrete example thereof, i.e., the rules of release and
remediation, worthy at least of the attempt.
To convert the positivist analysis of the first three Parts of the
Article into a normative argument is not especially difficult, and
such a conversion does produce a wide range of suggestions for
reforming international law governing responses to a treaty
breach.
The general idea that some breaches should release their victims is sound,"5 but the precise definition of material breach
should be refocused. 16 The current definition concentrates on
whether the breached provision is essential to the treaty, but, in
order to create an environment most consistent with stable cooperation, that definition should focus more closely on the
benefits of cooperation of which the breach deprives the victims
and on the costs that the breacher thereby avoids."7 Likewise,
the general principle that those seeking release from multilateral obligations should need to meet additional criteria is sound,
but the particular standards of the additional-release criteria require some modification. 18 The special effects test unwisely al215 See
supra Part I.B.1.
See supra Part I.C.l.a.
217 See supra text accompanying notes 69-81.
218 See supra text accompanying notes 92-114.
216
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lows release when the effect of a breach is "special" but insubstantial. 19 The universal radical effects test, in contrast, chains
victims to the agreement despite widespread, equally shared
deprivations by the breacher.' The breach of singular promises
either never gives rise to a release option or allows any specially
affected party to release itself from all of its multilateral obligations under the breached treaty.
1
A. The Rules of Release
Taking all of these inconsistencies between rationalist IR theory and international law, and recasting them as normative suggestions, this Article proposes redrafting Article 60 as follows:
1. A material breach of a bilateral treaty by one of the parties
entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in
part.
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) The other parties by unanimous agreement to suspend
the operation of the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting
State, or
(ii) as between all the parties;
(b) a party specially affected compared to most parties to the
treaty, and substantially affected by the breach, to invoke it
as a ground for suspending the operation of the treaty in
whole or in part in the separable relations between itself and
the defaulting state.
(c) any party other than the defaulting State to invoke the
breach as a ground for suspending the operation of the
treaty in whole or in part with respect to itself if the treaty is
of such a character that a material breach of its provisions by
one party radically changes the position of most partieswith
respect to the further performance of its obligations under
219
20
22,
See supra text accompanying notes 105-106.
See supra text accompanying notes 108-113.
See supra Part I.C.2.d.ii.
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the treaty.
3. A material breach of a treaty, for the purposes of this Article, consists in:
(a) a repudiation of the treaty not sanctioned by the present
Convention; or
(b) the violation of a provision that leads to a substantialdeprivation of the benefits otherwise obtainable by the victim of
the breachfrom the treaty.
This reformulation leaves Article 60(1) intact. The reformulation of sub-paragraphs (b) and (c) of Article 60(2) brings the
additional-release criteria for multilateral obligations into closer
alignment with the substantial-deprivation-of-benefit standard
implied by rationalist IR theory derived from the IPD. The addition of "and substantially" to subparagraph (b) of Article
60(2) makes release stemming from the special effects test more
difficult to obtain and brings the relevant standard into closer
alignment with the substantial-deprivation-of-benefit standard
implied by rationalist IR theory. The substitution in subparagraph (c) of "most parties" for the current "every [nonbreaching] party" makes release as a result of applying the
(formerly). universal radical effects test easier to obtain. This
last addition, along with the proposed addition to subparagraph
(b) of the "compared to most parties" language, also unifies the
scope of the inquiry into which impacts are necessary for release
with respect to sub-paragralhs (b) and (c): The impact on most
parties is the relevant standard.
The reformulation preserves greater ease of release from bilateral as compared to multilateral obligations. Paragraph 1 retains the suspension-or-termination option for bilateral agreements, while paragraph 2 still mentions only suspension for
multilateral agreements. The reformulation retains the general
notion of additional-release criteria for multilateral obligations.
The reformulation also preserves the desirably greater ease of
release upon a special effect;- a special effect need only be substantial to allow release, while a broadly shared effect requires a
radical impact (although under the reformulation, victims may
show such an impact with respect only to most, rather than all,
2
See supra text accompanying notes 102-105.
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non-breaching parties). The reformulation also makes clear
that a specially affected nation may not release itself from its
obligations in the case of singular promises.
The reformulation of paragraph 3 switches the focus of the
definition of materiality from the role of the breached provision
in the treaty to the impact of the breach upon the parties.
B. The Rules of Remediation
As to the rules on remediation, both the principles of proportionality and of necessity are in need of revision to fit with the
normative IR-theory perspective. The easiest change-or conceptually the cleanest, at any rate-is simply to abolish the distinction between necessity and proportionality, and to make explicit the utility of the similarity-in-kind principle as an independent criterion. One might therefore propose the following
substitute for the principles currently embodied in section 905 of
the Restatement (Third):
A unilateral response to a breach shall cause a harm to the
breacher no greater than the harm caused by the breach, with
the exception that the victims of initially concealed breaches
may exact additional remediation from the breacher. The response shall, to the extent possible, involve the same general
form of obligation as the breach.
First, this reformulation clarifies that the relevant proportionality is with respect to the various harms at issue. Second, the
reformulation allows greater punishment when the breach is less
likely to be detected, i.e., more likely to be concealed. A rule
more precisely consistent with rationalist IR theory would take
into account a greater number of factors that contribute to the
unlikelihood of levying sanctions in a particular case. Third, the
similarity-in-kind branch of the proportionality principle is retained. Fourth, there is no necessity requirement. Note that the
reformulation would still prohibit grossly disproportionate responses if concealment were not at issue.
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C. The Relationship between the Rules of Release and
Remediation
The relationship between rules of release and remediation involves a possible reformulation in both areas of law. With respect to remediation, the formulation consistent with deterrence
theory is relatively simple to incorporate into the reformulation
just above:
A unilateral response to a breach shall, when combined with
any response involving suspension or termination of the
breached treaty, cause a harm to the breacher no greater than
the harm caused by the breach, with the exception that the victims of initially concealed breaches may exact additional
remediation from the breacher. The response shall, to the extent possible, involve the same general form of obligation as
the breach.
The proper treatment of release as constrained by remediation is, as has been mentioned, less urgent (if also less easily incorporated into existing rules). The typical unfolding of responses is negotiation followed by release, followed in turn by
remediation. With the reformulation just above, parties would
know that the sum of release and remediation is the relevant
quantum of harm inflicted upon the breacher, and that the general principle of probability-modified proportionality applies.
The possibility remains, however, that release could by itself
be disproportionate. The solution would simply be to reformulate the rules of Article 60 in such a way as to make the first sentence of the reformulated portion of the law of state responsibility applicable to release as well. Note that the second
sentence-the similarity-in-kind branch of the proportionality
test-is superfluous in the context of release, since the obligations at issue will automatically be of the same general kind as
those breached. One might propose as an Article 60(6) to the
Vienna Convention, perhaps:
6. The exercise of a party's option to suspend (or, if bilateral,
to terminate) an agreement shall not cause the breacher a
greater harm than that visited upon the non-breaching party by
the breach.
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One may, therefore, generate a broad and numerous set of reform proposals by the simple expedient of converting the positivist shortcomings of the rational-design hypothesis into a set of
expressly normative recommendations. The earlier portion of
this Part focused on a brief recounting of the possible advantages of that normative perspective, such as clarity of vision, in
comparison to other normative perspectives. One can hardly
hope to resolve long-running debates about the best normative
perspective in a few pages, but one may at least hope to show
that rationalist IR theory provides a ready framework for those
interested in proposing changes to (rather than simply describing) extant international law governing responses to the breach
of a treaty.
CONCLUSION
This Article has taken the reader through three fairly detailed, positivist Parts and one broader normative Part, all by
way of its examination of the international legal rules governing
responses to breach of a treaty. The positivist approach produced a moderate amount of consistency with the rationaldesign hypothesis, some insights into the limitations of extant
IR theory's ability to grapple with the real world, and one winnowing of the panoply of theories that might ex ante have been
considered viable IR theory candidates for a consistent explanation of the international legal responses to a treaty breach. The
normative Part yielded a number of reform proposals, although
the author would never argue that the normative Part thereby
banished all controversy as to whether the rationalist framework
is a wise foundation for any normative theorizing at all.
This Conclusion draws together the implications of the previous analyses (mostly from the positivist perspective) and some
previous work by this author in order to suggest three future
approaches to the simultaneous pursuit of rationalist IR theory
and international law. The approaches are not mutually exclusive. They involve, in the order in which this Article proposes
them, an intensive empirical focus on the operation of certain
treaties involving the production of an international public
good, a concerted theoretical effort to examine IPDs involving a
choice of three actions per player, and a willingness to examine
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the applicability of law and economics scholarship in U.S. contract law to the analysis of international treaties.
Elsewhere, this author has examined the interplay between
rationalist IR theory and international treaty law from both
sides of the looking glass. In one article, the author emphasized
the contribution that a focus on the concept of iteration, derived
from rationalist IR theory on the IPD, could make to both the
broad and the detailed analysis of the law of treaties (and of
various rules contained in particular treaties as well).' In comparison to rationales for the fundamental aspects of treaty law
offered from within an international legal perspective, the
"iterative perspective" derived from rationalist IR theory in that
article was able to explain a broader range of phenomena within
the law of treaties, and to do so with fewer logical conundra. In
another article, the author highlighted the potential contribution of the treaty process to the development of rationalist IR
theory.'4 The treaty process naturally provides relatively clear
and objective definitions of the game-theoretical concepts of
"iteration" and "action," without which rationalist IR theory's
use of game theory will inevitably remain merely metaphorical
rather than truly theoretical.
Rationalist IR theory appears to be less useful in explaining
the rules regarding non-negotiated responses to breach than in
explaining the role of iteration in rules concerned with prebreach events and with negotiated responses to breach. The
wide variety of remediation-oriented responses to breach would
also seem to provide a duller stone on which to hone rationalist
IR theory than do the natural iterations of the treaty process
governing the validity and interpretation of treaties. One may
nonetheless take these works as a whole and suggest three possible directions for future research seeking a more concrete
combination of IR theory and international law. One direction
involves intensive empirical work; a second direction involves
the improvement of IR theory itself, with an eye towards making empirical investigations more theoretically tractable; and the
third direction involves borrowing from the extensive law and
economics literature on Anglo-American contract law.
w See Setear, Iterative Perspective, supra note 3.
- See Setear, supra note 45.
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It is possible, though not certain, that an intensive empirical
investigation of one or more treaties in light of rationalist IR
theory would produce useful results. There is reason to hope
that the treaty process can provide a good deal of natural definition and concreteness to the abstractions of the IPD. There is
some reason to imagine that various responses to breach may fit
naturally into the framework of the IPD (where release is at issue) or into some more general framework of rationalist IR theory (where remediation is at issue). Perhaps a well-focused investigation into a particular treaty or set of treaties can yield
enough empirical nuggets to give shape to the various abstractions already posited by rationalist IR theory.
One might offer arms-control treaties between the United
States, on the one hand, and the Soviet Union/Russia, on the
other hand, as such a starting point. The technical issues involved in such treaties are often abstruse, and the relevant
agreements can be quite lengthy and complex. Nonetheless, the
relevant political relationship extends back a few decades and
across a number of highly publicized treaties. The relevant relationship is, at least from the legal standpoint, a bilateral one.'
There is a great deal of literature on the subject. In addition,
the resources devoted to verification of the relevant agreements
were, and to a lesser extent remain, immense (although the results of such inquiries are not always available to the public).
Finally, a number of legal or compliance-oriented controversies
have been the subject of governmental attentions.
The second main avenue of approach would be more theoretical than empirical in its orientation. The typical dichotomous-action Prisoner's Dilemma employed in rationalist IR
theory is too crude even to begin to mirror international legal
realities. As Part III of this Article suggested, the employment
of a game providing at least three choices of action per player
(such as "no response to breach," "exercise release option," and
"exercise remediation option") seems necessary to capture legal
phenomena with enough detail to justify the artificialities of the
rationalist approach. IR theorists, if they are serious about the
225 The dissolution of the Soviet Union did leave multiple nuclear republics in the
former Soviet Union, not just Russia, but one might well be able to avoid extensive
treatment of the non-Russian republics.
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relevance of their theories to real-world phenomena, should
therefore turn their attention to adapting the small gametheoretical literature on three-option games to IR-and to expanding that literature where appropriate. One might of course
hope for game-theoretical representations with a palette of
more than just three colors, but this author, at least, would be
pleased at the most incremental of improvements in this area.
More generally, at roughly the same time that Axelrod's
simulation-oriented work lifted the IPD (and the tit-for-tat
strategy) to prominence, the theoretical structure of other sorts
of games began to grow like Topsy."6 Games involving private
knowledge, sequential moves (with both perfect and imperfect
information), and various moves by Nature have since been the
subject of much analysis. 7 and game theoreticians have developed concepts of equilibrium far more refined than those, such
as dominance or the Nash criterion, that previously constituted
the best efforts of economists to specify solutions to the questions posed in game-theoretical terms.' Some of this more recent work in game theory has migrated into law and into international relations. In light of the emphasis in early neorealism
on the use of microeconomic theory and on security issues, it is
unsurprising that the neorealists have embraced formal game
theory and that most of their game-theoretical work has focused
on national security, especially in war or crisis. 9 These works
226 See
The New Palgrave: Game Theory, at xi-xii (John Eatwell et al. eds., 1989)
(game theory languished until the mid-1960s but became "a roaring flood that threatened to engulf the rest of microeconomics" in the 1980s); Ian Ayres, Playing Games
with the Law, 42 Stan. L. Rev. 1291, 1291-92 (1990) (stating that game theory has
supplanted marginalist approach in economics and is thus likely to influence law and
economics).
227 Many books on game theory now discuss the one-shot and iterated Prisoner's
Dilemma in their earliest chapters before moving on to the treatment of games involving private knowledge, sequential moves, moves by Nature, and other concepts.
See, e.g., Rasmusen, supra note 45, at v-vii; Fundenberg & Tirole, supra note 47, at
viii-xiii.
- For two fairly accessible discussions of some of the newer equilibrium criteria,
see Stephen W. Salant & Theodore S. Sims, Game Theory and the Law: Ready for
Prime Time?, 94 Mich. L. Rev. 1839, 1854-63 (1996) (reviewing Baird et al., supra
note 47) (beginning with discussion of Nash equilibria and moving to discussion of
several more recently developed criteria); Robert Powell, Nuclear Deterrence The-
ory: The Search for Credibility 196-213 (1990).
29 For some of the earliest examples applying modem game theory to international
relations, see Barry Nalebuff, Brinkmanship and Nuclear Deterrence: The Neutrality
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In legal
of Escalation, 9 Conflict Mgmt. & Peace Sci. 19 (1986); Robert Powell, Crisis Bargaining, Escalation, and MAD, 81 Am. Pol. Sci. Rev. 717 (1987). Of five pieces under the heading "International Relations" in a 1989 collection of game-theoretical
pieces across the discipline of political science, all concern war or crisis. See Robert
Powell, The Dynamics of Longer Brinkmanship Crises, in Models of Strategic Choice
in Politics 151 (Pater C. Ordeshook ed., 1989); R. Harrison Wagner, Uncertainty, Rational Learning, and Bargaining in the Cuban Missile Crisis, in id. at 177; James D.
Morrow, Bargaining in Repeated Crises: A Limited Information Model, in id. at 207;
Emerson M.S. Niou & Peter C. Ordeshook, Stability in International Systems and the
Costs of War, in id. at 224; Bruce Bueno de Mesquita & David Lalman, The Road to
War Is Strewn with Peaceful Intentions, in id. at 253.
m James Morrow's book "strives to give the political scientist a thorough and careful introduction to the essential ideas of game theory without requiring an extensive
mathematical background." James Morrow, Game Theory for Political Scientists at
xix (1994). As far as I know, his is the only book-length survey of game theory aimed
specifically at political scientists. Morrow states that his book "pays special attention
to four problems in political science: the role of legislative rules, deterrence in international crises, voting in mass elections, and bargaining." Id. at 3. Only "deterrence
in international crises" concerns IR, and obviously that particular problem is not directly linked to international law-indeed, a focus on national security and on crisis
each diminish the likely relevance of international law, at least if one believes that
international law will exert its greatest influence on matters that do not directly involve force and that unfold over a long period of time. Morrow in fact states directly
that "[c]rises and war have been the primary focus of formal models in international
politics." Id. at 258. In his own work, fifteen particular topics in political science (as
opposed to topics exclusively in game theory) merit a sub-chapter heading: "Nixon's
Christmas Bombing," "The Calculus of Deterrence," "The Decision to Vote,"
"Deterrence in the Cuban Missile Crisis," "Political Reform in Democracies,"
"Candidate Competition in the Spatial Model of Elections," "Sophisticated Voting,"
"Agenda Control," "Legislative Rules and Structure-Induced Equilibria,"
"Bargaining in Legislatures," "Nuclear Deterrence," "Deterrence and the Signaling
of Resolve," "'Why Vote?' Redux," "The Informational Role of Congressional
Committees," and "Retrospective Voting and Electoral Control." Id. at vii-x. A
third of the examples (five of fifteen) are drawn from IR, but none involves a discussion of international law.
Works concerned with broad issues of "stability" in the international system treat
what one might think of as a prerequisite for the operation of international law but
do not address cooperation in any but the most abstract terms. See James E. Alt et
al., Reputation and Hegemonic Stability: A Game-Theoretic Analysis, 82 Am. Pol.
Sci. Rev. 445 (1988) (examining response of allies of dominant nation-state-the
"hegemon"-to requests by hegemon in terms of obedience or disobedience, though
with some discussion of OPEC); Emerson M.S. Niou & Peter C. Ordeshook, Stability
in Anarchic International Systems, 84 Am. Pol. Sci. Rev. 1207, 1208-09 (1990)
(examining international system of "unitary actors ... endowed with infinitely divisible and transferable resources, which they maximize ... and which measures their
ability to overcome adversaries" and noting that "analysis takes no account of geography, resource growth, war costs, uncertainty, and ambiguities in the notion of sovereignty"); Robert Powell, Stability and the Distribution of Power, 48 World Pol. 239
(1996) (analyzing "stability" in terms of probability of war occurring). Presumably
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scholarship, there has likewise been a significant movement towards the use of sophisticated game theory. 1 Nonetheless, as in
IR theory, there has been a lack of sophisticated game theory
applied to questions of international law. In fact the use of any
game theory at all-indeed, the use of any economic theory-in
the study of international law has been a spotty or recent phenomenon. 2 One might therefore imagine future gains not only
because of the pessimism of neorealists about the utility of international law, even
works clearly involving international legal issues assiduously avoid actually mentioning international law. Donald Wittman, Arms Control Verification and Other Games
Involving Imperfect Detection, 83 Am. Pol. Sci. Rev. 923, 928-34 (1989) (examining
arms-control agreements generically as games in which a player's possible actions are
either to live up to or to cheat upon an arms control agreement, and in which a
"detector" assists a nation in determining the action chosen by the other nation).
21 See Baird et al., supra note 47 at xi ("[m]uch of the analysis in this book makes
extensive use of concepts that have been developed only within the last decade");
Peter H. Huang, Strategic Behavior and the Law: A Guide for Legal Scholars to
Game Theory and the Law and Other Game Theory Texts, 38 Jurimetrics J. 99
(1995) (reviewing Baird et al., supra note 47) (providing summary of developments in
legal analysis involving game theory as well as a useful annotated guide to non-legal
books on game theory).
212 The index of the Baird-Gertner-Picker book provides some evidence of this
omission. That index has entries of three or more lines for the following areas of law,
with the number of lines indicated in parentheses: antitrust (9), bankruptcy (12), civil
damages (8), civil procedure (23), contract damages (7), contract law (23), contracts
(12), debtor-creditor law (4), disclosure laws (3), family law (3), labor law (14), property law (3), regulation (7), secured transactions (3), and torts (29). The entries for
the following areas of law involve one or two lines: arbitration, criminal law, commercial law, conflict of laws, copyright law, corporate law, criminal law, environmental
law, insurance law, patent law, securities law, and tax law. There is no entry for
"customary international law" or "GATT" or "the International Court of Justice" or
"international law" or "international organizations" or "treaties" or "the United Nations" or any other term that seems applicable to international law-with the exception of an entry, citing a single page, for "most-favored nation clause." (Fans of constitutional law might note that there are also no entries for "constitutional law" or
"due process" or "free speech" or "separation of powers" or "takings.") See Baird et
al., supra note 47, at 319-30 (index).
Similarly, in Huang's paragraph discussing "[tiopics in law that have recently been
viewed through a game-theoretic lens," he cites twenty-nine articles or working
drafts. See Huang, supra note 231, at 100-01 nn.8-30. Only one-a student note on
negotiations addressed to climate change, see id. at n.22-is on an international legal
topic, and even this analysis involves the characteristics only of proposed (rather than
actual) international legal rules. (That note is Adam L. Aronson, Note, From
"Cooperator's Loss" to Cooperative Gain: Negotiating Greenhouse Gas Abatement,
102 Yale LJ.2143 (1993).) A number of authors have undertaken methodologically
sophisticated, empirically grounded treatments of problems of cooperation among
individuals who do not resort to centralized governmental enforcement mechanisms.
See, e.g., Robert Ellickson, Order Without Law: How Neighbors Settle Disputes
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from the incorporation of IPDs involving more than two players
simultaneously interacting or involving their choice from more
than two strategies, but also imagine gains from a consideration
of broader recent advances in game theory.
The third pathway that the rationalist examination of IR theory and international law might take involves the adaptation of
the law and economics literature in contract law to issues involving international treaties. Both contracts and treaties are
consensual agreements; both have elaborate rules governing
their validity and interpretation and the permissible responses
to their breach. Indeed, treaties are often described as "contracts among nations." 3 The law and economics literature on
contracts bears many broad similarities to rationalist IR theory.
Both draw heavily upon rationalistic analysis generally and economic analysis particularly while studying a subject matter traditionally part of a discipline besides economics. Both literatures
employ marginalist as well as game-theoretical methodologies.
Both favor theoretical *exposition over extensive quantitative
analysis. In contrast to rationalist IR theory, the law and economics of contract specifically involves agreements and the
analysis of legal rules governing those agreements. The underdevelopment of the international legal system means that significant adaptation of the law and economics literature on contracts would be necessary before one could confidently employ
the theoretical techniques that scholars of law and economics
have developed over the past decades, but the starting point
would at least be a well-developed, rationalistic, interdisciplinary theory of consensual agreements.
(1991); Elinor Ostrom et al., Rules, Games, and Common-Pool Resources (1994);
Elinor Ostrom, Governing the Commons (1990). These treatments thereby involve a
situation similar to the international political context in terms of the diminished role
of centralized enforcement; nonetheless, these treatments involve individuals rather
than nation-states as the relevant actors, and involve interactions that do at least take
place against a background of centralized enforcement even if the arrangements
made by the relevant individuals are not directly resorts to governmental authority.
See, e.g., Whitney v. Robertson, 124 U.S. 190, 194 (1888) ("A treaty is primarily
a contract between two or more independent nations.
); Edye v. Robertson, 112
U.S. 580, 598 (1884) ("A treaty is primarily a compact between independent nations."); Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) ("A treaty is in its
nature a contract between two nations ....).